Knight First Amendment Institute https://knightcolumbia.org/ In house <![CDATA[The Forever War and the First Amendment]]> https://knightcolumbia.org/events/the-forever-war-and-the-first-amendment This September we will mark 25 years since 9/11. Many of us will be reflecting on the losses and the meaning of that day, and on how the legacies of that day still shape lives in New York, across the country, and around the world a quarter century later. 

On September 9th and 10th, the Knight Institute and Columbia’s Simon and June Li Center for Global Journalism will convene journalists, scholars, lawyers, and activists to explore one of those legacies in particular: The ongoing impact of the War on Terror on democratic rights, including the freedoms of speech and the press.

First Amendment freedoms came under stress from the moment President George W. Bush declared a “War on Terror” and his press secretary warned Americans to “watch what they say.” Pervasive secrecy and censorship hid war crimes, torture, and other grave human rights abuses. Surveillance programs proliferated, from the NYPD’s targeting of New York Muslim communities to digital surveillance operations of unprecedented scope and reach. Anti-terrorism legislation criminalized forms of peaceful speech and association. The press struggled to fulfill its role, and when journalists did report on controversial and covert programs, they did so in the shadow of the Espionage Act, which the government deployed against journalists’ sources and threatened to deploy against journalists themselves. 

But those same First Amendment freedoms nurtured new forms of resistance, solidarity, and even accountability as well. Civil society groups and community organizations mobilized to defend civil liberties and protect targeted minorities. A new generation of journalists responded to the failures of legacy media by building new media tools and institutions in response to the failures, limitations, and blind spots of legacy media.

What does all of this mean for us today? To what extent are we still living the Forever War, and in what ways are we now living in its shadow? How have the suppressions and distortions of the Forever War worked their way into our systems and psyches? Is our system of free expression stronger or weaker now? This symposium will explore these and other questions and assess the lasting significance of the Forever War for First Amendment freedoms and for our democratic institutions and culture. 

The symposium is co-sponsored by the Knight Institute and the Simon and June Li Center for Global Journalism at Columbia Journalism School in partnership with Harper’s Magazine and The Columbia Daily Spectator. 

Reception to follow on September 9.

Lunch will be provided on September 10.

Registration is required.

RSVP for in-person or virtual attendance.

 

]]> /events/the-forever-war-and-the-first-amendment Wed, 09 Sep 2026 00:00:00 -0700 <![CDATA[Memo to Yale's President and General Counsel Opposing a Trump-Yale Deal]]> https://knightcolumbia.org/content/the-full-memo-to-yales-president-and-general-counsel-opposing-a-trump-yale-deal This memo was written and sent to Yale's President, general counsel, and board of trustees shortly after the University's negotiations with the Trump administration over allegations of discrimination in admissions were publicly reported. We publish it here in its original form. 

 

MEMORANDUM

To: President Maurie McInnis and General Counsel Alexander Dreier

From: Serena Mayeri and Amanda Shanor

Re: Analysis of Potential Trump-Yale Deal

Date: June 30, 2026

 

  

Introduction

We write as legal scholars who have studied the Trump administration’s agreements with universities and other institutions, and as alumni who care deeply about Yale. We understand that Yale is under tremendous pressure and recognize the appeal of negotiating a settlement with the government in attempts to ward off the attacks faced by Harvard and other elite universities, including our own (the University of Pennsylvania). But we are gravely concerned about the potential implications of Yale reaching such a deal, even one that appears narrow in scope.

This memo briefly analyzes the concerns raised by previous agreements between the federal government and universities. We pay particular attention to the University of Virginia (UVA) agreement, which, like the Yale investigation, appeared to focus on race-related policies.

**

The Trump administration has followed a consistent playbook in its negotiations with universities and other civil society institutions. First, the government threatens or imposes catastrophic financial consequences, such as funding cutoffs and other penalties. Next, the administration coerces institutions to agree to vague and often contradictory definitions of concepts such as discrimination, equality, sex, antisemitism, protest, and terrorism, and the scope of executive power (e.g., its authority to change the terms of the agreement, impose penalties not authorized by law, or enforce rules not found in law).

Several troubling features are common to the university agreements:

  1. First, the agreements bind schools to vague, shifting, and contradictory definitions of prohibited conduct that go far beyond and may violate established law.
  2. Second, even in the absence of external monitoring, the creation of possible personal civil and criminal liability for university leaders functionally ensures ongoing federal oversight and control.
  3. Third, these agreements exert a chilling effect on academic inquiry, institutional independence, political discourse, and free expression—values that lie at the heart of Yale’s mission.
  4. Fourth, university deals have not insulated schools from pressure or interference. If anything, they have invited further demands.
  5. Finally, these deals contain myriad unconstitutional and unlawful provisions. Overwhelmingly, universities and other institutions that have pushed back against similar pressure from the administration rather than signing agreements have been successful in court.

I. Vague, Ambiguous, and Shifting Definitions 

Existing university agreements commit schools to legal definitions and interpretations that go beyond and sometimes violate established law. For example, UVA promised to follow the over- and under-inclusive definition of discrimination contained in (non-binding) July 2025 Department of Justice guidance. That guidance went far beyond the Supreme Court’s ruling in SFFA v. Harvard, which explicitly allows colleges to consider, for example, how an applicant’s race—“through discrimination, inspiration, or otherwise”—has affected their lives, and acknowledges diversity as a laudable goal. The DOJ guidance, in contrast, bars the use of race, sex, or other protected characteristics, “no matter the program’s labels, objectives, or intentions.” The guidance appears to prohibit the use of race-neutral “proxies,” including indicia of socioeconomic status. It bans criteria such as “cultural competence,” “lived experience,” “first generation” status, or “underserved geographic areas” if the government suspects they are being used to increase the representation of racial or other minorities.

The DOJ guidance is full of ambiguities and internal contradictions, creating uncertainty about what would and would not be considered a violation of the UVA agreement’s terms. For example, its broad definitions of unlawful discrimination could be read to prohibit reliance on virtually any criteria other than those that tend to decrease diversity, such as standardized test scores. An admissions boost—or even financial aid—to students who have experienced economic hardship, or to first-generation students, could be interpreted by the government to violate the agreement. Yale’s admirable leadership in creating programs to bolster first-generation students and those from low-income backgrounds could be read to run afoul of these strictures, especially if they disproportionately benefit students of color.

Perhaps more dangerously, because the DOJ guidance is internally contradictory, or at best subject to multiple interpretations—some of which violate established law—pledging adherence to it can expose the university to liability from all sides. Vagueness, ambiguity, and contradictory provisions are a feature of many of the government’s deals with universities, perhaps by design. For example, Brown’s agreement requires that Title VI be applied evenhandedly to all, but then promises targeted outreach to students from Jewish day schools. Some of the agreements prohibit discrimination based on national origin while requiring schools to hand over incriminating information about student visa holders. Some require (or purport to require) schools to abide by a definition of sex drawn from an executive order that departs from accepted science and violates federal and state laws that prohibit discrimination based on sexual orientation and gender identity. In the absence of judicial precedents that could inform the interpretation of these vague terms, there is no background understanding against which the university could reliably predict the agreement’s meaning.

Further, some of the agreements punish universities for following then-prevailing understandings of the law. For example, the Trump administration froze $175 million in federal funding to Penn because a transgender swimmer competed on the women’s swim team at a time when both Title IX and NCAA rules at least allowed and arguably required her participation. The Penn deal to restore funding thus rested on a retroactive application of the Trump administration’s reinterpretation of Title IX to proscribe actions whose permissibility had not previously been questioned.

II. Ongoing Federal Oversight and Control

The lack of formal external monitoring might appear to distinguish UVA’s agreement from other deals such as Columbia’s and Brown’s. The reality, however, is that the UVA agreement’s terms—similar to provisions of the Cornell and Northwestern deals—include ongoing federal oversight and control and expose university leaders to civil and criminal liability. The deals require that various administrators, including Presidents and members of boards of trustees, certify quarterly, under penalty of perjury, the university’s compliance with their terms. The administration’s declared intention to use the False Claims Act to prosecute “civil rights fraud” by universities and to encourage private qui tam actions to this effect mean that these provisions place university leaders—and potentially all employees responsible for signing grants—in serious legal jeopardy. This is particularly true given the ambiguities and contradictions described above.

The UVA deal, celebrated as a “constructive outcome” that upholds “the university’s principles and independence,” in fact subjected the university to even greater legal peril than if it had done nothing at all. It provided that if the university made underspecified changes related to “DEI” to the federal government’s satisfaction, in 2028 the administration would close open investigations into the university. Under the agreement’s express terms, the federal government remains free to open new inquiries at any time and to investigate noncompliance with the agreement itself, not just federal law. Further, the government reserves the right, at any time and for any reason, to terminate the agreement and to “pursue enforcement actions, monetary fines, or grant or funding terminations” pertaining to any past or future actions.

This may be the most dangerous aspect of these deals: they attempt to establish the executive’s sole, unlimited, and arbitrary power to say what the law is and what the Constitution means—and to impose its own shifting interpretations on institutions at will.

III. Chilling Effects on Academic Inquiry and Freedom of Expression

University agreements contain other troubling provisions that infringe the privacy, freedoms, and safety of university affiliates. Requirements include disclosure of information about students and university employees, including not only admissions-related data but also information about school policy violations that the government retains the prerogative to share across agencies and with law enforcement. References to the “prevention of terrorist financing” may appear to concern foreign funding. But they may also facilitate governmental attempts to impose broader censorship and legal penalties on universities, their donors, and community members pursuant to the President’s executive actions targeting those the government considers to promote “extremism on migration, race, and gender,” or “hostility towards those who hold traditional American views on family, religion, and morality,” as “domestic terrorists.”

These agreements often contain terms that purport to safeguard “academic freedom” and promise no government interference with curricula or freedom of expression. But if universities can face drastic financial penalties anytime the federal government decides that the institution is out of compliance with the agreement, the chilling effect on faculty, administrators, and students will inhibit free academic inquiry and robust political discourse—values that are core to Yale’s mission.

IV. Unconstitutional and Unlawful Demands

The government’s proposed Compact for Academic Excellence in Higher Education and individual university deals executed before and after contain many unlawful and unconstitutional terms. Many of their provisions violate the First Amendment rights of freedom of speech, association, and academic freedom; the separation of powers and constitutional constraints on executive power; constitutional limits on federal spending power; equal protection; and due process. Some also infringe state constitutions and state laws.

These legal and constitutional flaws are important for at least two reasons. First, they mean that universities that enter such agreements accede to the government’s end run around the Constitution and the law as enacted by Congress and interpreted by the courts. Second, they suggest Yale might likewise be victorious in court should it decide to push back against the government’s demands, as schools such as Harvard, UCLA, and Penn have done.

We will note some common legal and constitutional infirmities here; a more complete legal analysis of the Compact may prove helpful in assessing a Yale deal.

  • The First Amendment (speech, association, and academic freedom)

Universities enjoy First Amendment rights. The First Amendment prohibits the government from discriminating among viewpoints or using government power to favor or disfavor certain messages or associations. The Court also has made clear that when the government provides funding for other parties’ speech (such as research), it may not discriminate based on viewpoint. And it may not limit what the recipient says using private funds. Just as under the unconstitutional conditions doctrine, the government cannot require, as a condition of certain funding, that a recipient relinquish its First Amendment rights to say whatever it would like on its own dime. These principles protect universities against, inter alia, governmental efforts to impose or influence what is taught or researched or who teaches or researches (including as promoting “viewpoint diversity”); punish institutions presumed to be “woke” or otherwise out of ideological step with the administration; institute protest or other speech rules that go beyond narrow First Amendment exceptions (e.g., true threats, incitement, or severe-or-pervasive harassment); compel universities to disclose the personal information of faculty that, e.g., study certain topics or join particular groups; or collect information about syllabi or faculty viewpoints.

  • Separation of powers and limits on executive power

The power to spend and to make law belong to Congress, not the President. With respect to entirely domestic issues like the funding of U.S. research institutions, the executive derives all power to act from Congressional statute, absent which executive action is unconstitutional. No statute authorizes the executive to impose the conditions on research funding, tax exempt status, or the like that the administration has sought by private agreement, still less by fiat rather than rulemaking. What is more, the recently developed major-questions doctrine likely demands clear congressional authorization, absent here. No federal law authorizes the executive to withhold money Congress has authorized for research funds if universities do not meet the administration’s demands. The current administration routinely has flouted procedural requirements for suspending federal funds under civil rights statutes such as Title VI and Title IX.

  • Spending power limits

The government may attach conditions to federal funds only if the conditions are clear, related to the spending program’s purpose, not independently unconstitutional, and not coercive. Threats to withhold all federal support from a university dwarfs the roughly ten percent of a state budget the Supreme Court deemed “a gun to the head,” making related demands likely unconstitutionally coercive as applied to public universities. Many agreements sought from private universities violate the clarity and no-unconstitutional-condition limits that apply to private recipients.

  • Equal protection / civil rights statutes

The government’s terms commit universities to rules the Constitution and civil rights statutes do not impose. In addition to reaching far beyond SFFA v. Harvard, the government’s terms often prohibit conduct the law permits or requires. For example, the executive-order definition of “sex” that some agreements incorporate departs from Title VII as construed in Bostock and from many states’ antidiscrimination laws, so compliance in one direction risks liability in another. Additionally, many agreements collapse distinct legal standards—for instance, treating race, sex, and national origin alike, whereas courts analyze these categories differently.

  • Due process / void for vagueness

A condition is unconstitutionally vague when people of ordinary intelligence must guess at its meaning, and greater precision is required where First Amendment freedoms and severe penalties are at stake, as is generally true of key terms in university agreements. Terms like “proxies,” “DEI,” and undefined civility, conduct, or protest standards invite arbitrary and discriminatory enforcement and drive institutions to over-comply. This vagueness makes the certification requirements perilous: requiring university employees to certify compliance with standards whose meaning is unknown or shifts at the government’s discretion necessarily puts them at risk.

  • Unconstitutional conditions

The Constitution not only protects the foregoing rights but also prohibits the government from conditioning benefits—including discretionary benefits to which a recipient has no right—on relinquishing or waiving their constitutional rights, First Amendment or otherwise.

The agreements that the administration has sought with universities—and the actions they have taken to pressure them into agreement—include many of these unlawful or unconstitutional elements. For this reason, universities, law firms and institutions that have rejected the government’s coercive deals have been overwhelmingly successful in challenging them in court. Recognizing the high stakes for democracy and civil society, alumni, students, and faculty have rallied behind institutions that stand up for their rights, likely to the schools’ broader benefit—just as law firms that have refused deals have fared better on many metrics than those that have signed them.

Conclusion

We understand that the government’s pressure campaign places Yale and other schools in an unenviably difficult situation. But the existential nature of the threat is a reason not to consent to deals that amount, at best, to conditional reprieves of uncertain duration and value.

Universities that have made deals often face continued pressures and demands. Penn, for example, made an early agreement with the Trump administration a year ago and has been targeted on many fronts ever since.

Moreover, a deal with Yale will reverberate far beyond the university. The government undoubtedly hopes that other schools facing similar investigations will follow suit—increasing its leverage over higher education more broadly.

Yale should instead stand up for the Constitution and the rule of law. Schools and law firms that have pushed back have won an almost unbroken string of legal victories. A powerful coalition of faculty, students, and alumni united across ideological, disciplinary, and geographic lines last year to reject the administration’s “compact” for higher education, and Yale can expect similarly robust support from a growing network of supporters around the country should it defend its institutional independence.

]]> /content/the-full-memo-to-yales-president-and-general-counsel-opposing-a-trump-yale-deal Mon, 17 Aug 2026 00:00:00 -0700 <![CDATA[The Forever War and the First Amendment]]> https://knightcolumbia.org/content/the-forever-war-and-the-first-amendment This September will mark a quarter-century since 9/11 and the inauguration of the “war on terror.” Many of us will be reflecting on the meaning of those events and on the profound impact they have had on so many lives here in the United States and around the world. At the Knight Institute, we’ll be reflecting in particular on the way those events transformed American democracy. On September 9th and 10th, we’ll partner with Columbia’s Simon and June Li Center for Global Journalism, Harper’s Magazine, and the Columbia Daily Spectator to host a major symposium on the legacy of the war on terror for the freedoms of speech and the press.
 
When we first conceived of this symposium, we had a very clear idea of which scholars, advocates, and journalists we’d want to invite. We’re thrilled that virtually all of them have agreed to participate. The event will feature M. Gessen, Lydia Polgreen, Phil Klay, Steve Coll, Rozina Ali, Emily Tripp, Hari Kunzru, Assia Boundaoui, David Cole, Astha Sharma Pokharel, Nicole Hemmer, Sharif Abdel Kouddous, Shourideh C. Molavi, Aziz Rana, Shirin Sinnar, Brett Max Kaufman, and Prem Thakker. It will also include one-on-one public interviews with, among others, Alberto Mora, who served as general counsel to the Navy under President George W. Bush, and Mohamedou Ould Slahi, who was imprisoned without charge at Guantánamo Bay for 14 years. We expect to announce additional participants in the coming weeks.
 
We hope that many of you will be able to join us for this event. The symposium will take place at Columbia’s Lee C. Bollinger Forum and will run from 4:00 pm ET on September 9th through 5:00 pm ET on September 10th. You can register here to attend in person or to watch the livestream. We expect the event to be well-attended, so please register early.

Read more information about the event here. 

]]> /content/the-forever-war-and-the-first-amendment Tue, 11 Aug 2026 00:00:00 -0700 <![CDATA[Responding to Federal Whac-A-Mole: Challenges—and Opportunities—for Higher Education]]> https://knightcolumbia.org/content/responding-to-federal-whac-a-mole-challengesand-opportunitiesfor-higher-education It’s not a news flash that college campuses go through turbulent periods, including vigorous and sometimes disruptive protests. But until the second Trump Administration arrived in January 2025, it would have been a news flash for the federal government to be the lead national disruptor. Yet the administration’s rapid-fire changes to policy, communications, and legal obligations have reshaped the higher education operating environment, with implications for free expression and inclusive education at colleges and universities throughout the United States.

Actions against research universities have received much of the major media attention—including for cuts in research funding and international student visas; immigration-related arrests and detention; endowment tax increases and foreign-gifts scrutiny; accreditation changes; and demands for changes in admissions, athletics, bathroom access, hiring, and programming via executive orders, warning letters, civil rights law enforcement, and hefty “fines.” But the administration’s targeting of higher education reaches far more broadly. Community colleges, for example, are threatened with cuts to longstanding workforce-development programs, and minority-serving institutions have lost millions of dollars in discretionary funds that previously supported their work.

Protecting vibrant campuses, whether from this administration or others in the future, requires recognizing that the federal government has a vast array of mechanisms that are mostly designed to support schools but also include oversight and other authority that can be repurposed for punitive purposes. These levers function like Whac-A-Mole: Whenever a court limits the government’s use of one lever, another pops up. (This dynamic can also be seen in state efforts to control higher education.) A meaningful strategy thus requires attention not only to constraining misuse of specific mechanisms but also to shoring up colleges and universities’ capacity to protect themselves in an environment with myriad entry points for government pressure. 

The web of federal levers

A full review of the government’s authorities that can be turned into pressure points against higher education institutions is far beyond a blog post’s scope, but a few examples of less well-known levers may help illustrate the challenge just described and give context for the observations that follow.

One of these levers, little known outside of expert circles, is the administration’s campaign to stop colleges and universities from partnering with the National Study of Learning, Voting and Engagement (NSLVE). Founded in 2013, NSLVE is the largest national study designed to inform schools’ student-voter engagement efforts. In February 2026, the Department of Education warned thousands of higher education presidents that using NSLVE data would put them “at risk of being found in violation” of the Family Educational Rights and Privacy Act (FERPA), with penalties including withholding and recovery of Department funds. Adding fuel to the fire, the Department announced it was investigating Tufts University, which houses the nonpartisan study, and asked the university to pause release of its next report while the investigation is pending, which the university agreed to do. (On its website, NSLVE explains that it complies with FERPA “by design.”) Secretary of Education Linda McMahon said that “American colleges and universities should be focused on teaching, learning, and research – not influencing elections,” but the real result is that postsecondary institutions, which have a legal obligation to help students register to vote, have less information to guide their civic-participation efforts.

Another can be seen in how the Trump administration’s pressure on schools to end support for diversity, equity, and inclusion (DEI) programs shifted to technical regulatory channels after losing in litigation. The campaign began with high visibility—a day-one executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” followed by the Department of Education’s Office for Civil Rights’ much-criticized guidance on how it would implement the Supreme Court’s SFFA v. Harvard ruling that rejected consideration of race in college admissions. Declaring that “under the banner of [DEI],” schools are “smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline,” OCR threatened enforcement action against any school receiving federal financial assistance that did not abandon DEI programming contrary to the Trump administration’s expansive view.

A federal district court invalidated the guidance on vagueness and other grounds, writing that the guidance’s failure to “even define what a DEI practice is” risked chilling “the lawful and societally beneficial speech of regulated persons who do not understand what DEI- or race-related speech might be allowed.” Multiple federal courts had earlier put the guidance and related requirements on hold. But the chill had already taken effect as colleges around the country, fearing they would become investigation targets, “closed offices related to diversity, equity and inclusion; scrubbed websites; and cut other programming.” A similar Department of Justice memo warning all federal funding recipients about DEI programs likewise prompted colleges to “close[] campus centers and publications cater[ing] to certain racial or ethnic groups.” (Federal funding conditions based on the DOJ memo have also been invalidated.)

The administration quickly found a workaround by turning to a different source of authority to achieve its goals. Rather than defending the OCR DEI guidance on appeal, it has sought to implement similar restrictions even more broadly by proposing interrelated changes to the Office of Management and Budget’s (OMB) Guidance for Federal Financial Assistance and the General Service Administration’s (GSA) information-collection system for awards management. The proposals seek to add government-wide funding restrictions and compliance requirements for recipients of federal financial assistance, which currently number roughly 212,000, including schools. OMB’s proposes to add an “[u]nlawful DEI Provision,” among numerous other provisions. GSA’s proposal would require recipients to verify compliance not only with federal law, as has been a longstanding obligation, but also with “relevant executive orders prohibiting unlawful discrimination based on race or color,” including “programs or initiatives that involve discriminatory practices,” including “those labeled as DEI.” (OMB’s proposal also would prohibit federal funding related to “gender ideology,” as defined in an executive order that bars federal recognition of transgender people.)

As one commentator wrote, the proposal, if finalized, “will likely impose many of the same certification requirements [as the invalidated OCR guidance] on colleges and universities that want to receive federal funds, whether that is discretionary grants, formula grants or Title IV student aid” as well as on almost all other recipients of federal-agency funding. The new requirements are pending as each goes through the notice and comment process (see GSA and OMB comments), and many higher education organizations have expressed strong opposition.

Numerous other lesser-known federal pressure points remain available as the administration seeks to restrict campus communications and activities related to diversity and other issues. In February 2026, for example, OCR announced that 31 schools under investigation had ended or agreed to end their partnerships with the PhD Project, an effort that, for several decades, has supported diverse candidates for business doctorates. The Department of Housing and Urban Development found its own entry point into restricting higher education’s DEI efforts, warning schools in June 2026 that it would ensure “maximum accountability” for affinity housing that violates the Fair Housing Act. The Act prohibits discrimination based on race and other characteristics in housing rentals, but the guidance tells schools that “words and phrases, such as ‘diversity,’ ‘multiculturalism,’ ‘safe spaces,’ and ‘intersectional allyship,’ … encourage neo-segregationist schemes” and are “jargonistic words … designed to immunize universities that engage in these potentially unlawful discriminatory practices.”

In addition, changes to the public service loan forgiveness program would let the Secretary of Education disqualify employers that engage in a broad set of ill-defined “illegal activities” related to immigration and transgender people and therefore deny forgiveness eligibility to their employees. The breadth and substantial discretion embedded in these changes drew extensive objections from commenters as well as litigation. Two federal courts blocked the new rule just before its July 1, 2026, effective date, but the administration may continue to defend the rule in court or find other ways to leverage the program to serve its aims. Another government-wide proposed regulation would, amidst its many provisions, put similar restrictions on federal grants, including prohibiting the use of funds for DEI, “gender ideology,” and voter-registration activities as defined by the administration, as well as “[a]ny other initiatives that … promote anti-American values.” Yet another Department of Education proposed regulation would require accreditors to review institutions for whether they appropriately promote and prioritize “intellectual diversity,” a term that is not defined but presumably would be implemented consistent with the administration’s views. And on July 3, 2026, the Department of Education issued its regulatory agenda, which lists 19 ongoing and future plans for regulatory changes.

Three takeaways about the levers and their consequences

Three observations about the government’s multifaceted relationship with schools and its implications for free expression and pluralist campuses are worth noting, even if obvious, because they define the landscape in which any strategies to protect colleges and universities will be implemented.

First, the entwinement is extensive, and we oversimplify the environment at our peril. Many faculty and students think of the institution where they teach or study as “theirs,” albeit subject to decisions of the institution’s leadership. But as just illustrated, the executive branch can choose to exercise substantial authority over an institution’s conduct and operations. Even Project 2025’s 42-page education chapter, which sets out many ways an administration might exploit its sources of authority, is not comprehensive.

Second, the entwinement enables the executive branch to use an assortment of carrots and sticks—funding opportunities, oversight strategy, and the bully pulpit, among others—to shape campus speech environments. These, too, warrant attention in any future-planning efforts.

On the carrot side, for example, the Secretary of Education has authority to establish annual priorities for the agency’s millions of dollars in discretionary funding. Not surprisingly, while secretaries share some very high-level priorities about how to enhance education across the United States (compare DeVos and Cardona), their lead principles (e.g., deregulation vs. equity) and operational plans vary substantially. Until recently, science, health, and technology funding had been less susceptible to partisan shifts, in part because of peer review and other research norms, but recent events reinforce the broad, even if not unlimited, discretion of the executive branch in this domain as well.

The result is that administrations regularly redirect discretionary funds in ways that encourage certain conversations and discourage others. The Trump administration has done this by, for example, dangling benefits for institutions that sign its Compact for Academic Excellence in Higher Education and repeatedly canceling spending it characterizes as “woke.” The Biden administration did this by taking actions to advance racial and educational equity. More broadly, administrations can shape the campus speech environment by who they place on the federal accreditation and other advisory committees, funding boards, and education research bodies that perform additional oversight, grantmaking, and information-generating functions. On the bully pulpit side, administrations (and Congress) can likewise spotlight institutions for praise or condemnation, setting off a ripple effect of benefits or challenges on campus and beyond.

On the stick side, as illustrated above, an administration can use its high-profile legal authorities to pursue its priorities, as the Trump administration has done in its “crackdown” on higher education, but also can ramp up enforcement of seemingly unrelated laws, such as federal privacy and foreign-gifts restrictions, to exert further pressure. It can likewise shape the landscape by not investigating discrimination claims that do not fit its policy priorities. The Department of Education’s Office for Civil Rights, for example, resolved only one percent of its pending cases in 2025, including no resolutions in discrimination cases involving sexual or racial harassment or sexual violence, while bringing numerous actions related to antisemitism, transgender students, and diversity considerations in college admissions.

Third, the mere threat of federal enforcement often prompts change, as illustrated in the DEI examples above. A rational general counsel seeking to avoid conflict with the federal government might advise their institution to steer clear of actions that agencies have flagged as potentially unlawful, even when those agencies have overstepped their authority. Given the bottom-line importance of federal funds for nearly every higher education institution, vanishingly few can afford to face executive-branch hostility. To be clear, this sense of pressure is not unique to the second Trump administration; some commentators have argued that OCR under the Obama administration put undue pressure on colleges and universities to resolve Title IX sexual assault cases and that the Biden administration did the same under Title VI in response to campus protests following October 7, 2023. But what is different, both in degree and kind, is the punitive and sweeping nature of government efforts to demonize and constrict higher education institutions; these are unprecedented by any measure.

The upshot

The upshot, when it comes to government pressure on higher education institutions, is that the power imbalance is real and consequential. Why push back against the government’s overreach in a specific instance if the government can seek the same result by other means?

The answer is not that litigation and law reform are futile but instead that a realistic landscape analysis requires us to think broadly about how to achieve institutional resilience. That analysis makes clear that 1) many federal government mechanisms for interacting with higher education institutions can be implemented in ways that negatively affect campus speech and pluralism, even when administered lawfully; and 2) apart from exceptional cases, most schools are unlikely to risk litigating against the government, even when claims are available, although some occasionally express concerns about proposed regulations, as did several universities (e.g., Columbia, Boston University, Georgetown, Johns Hopkins, MIT, University of Washington) by submitting comments on the OMB proposed regulations. (Faculty organizations like the American Association of University Professors and unions like the American Federation of Teachers do not face the same constraints and risks as their members’ institutions and have been willing to pursue a more confrontational course toward the Trump administration, including through numerous lawsuits.)

A few suggestions

Against this backdrop, it may seem that school leaders have little meaningful protection against current and future targeting—but there is actually much that can be done, including efforts related to student acculturation, campus-rules communication, legal compliance, and refining a school’s institutional compass. I’ll describe each briefly below, drawing in part from my experience serving on Columbia University’s leadership team, and flagging why they matter for institutional self-defense as well as for the educational mission.

  • Acculturation to contestation of ideas and inclusive education: Many students arrive on campus without understanding why contestation of ideas and an inclusive environment are so integral to higher education. The same is true for some faculty and staff. As a result, a robust free-expression environment that gives all students an opportunity to thrive is not a given. But it can happen when the institution explicitly recognizes contestation and inclusion as mission-driven values and reinforces them with ongoing support, training, and campus-community engagement. (Professor Olatunde C.A. Johnson and I have developed this point at greater length in Campus Crises and the Limits of Title VI.) These efforts do double-duty: They benefit the campus community directly and serve as an institutional resource for showing external audiences, including government and the public, that diverse expression and a pluralist student body must coexist for higher education to succeed.
  • Clear and well-communicated campus rules: These are important not only for building internal trust and running effective campus operations but also for defending against federal attacks related to protest management. When rules clearly explain to community members what conduct is prohibited and why, those same explanations can serve as a foundation for defending against external pressures, whether from government or other stakeholders, especially in high-conflict periods.
  • Periodic internal compliance reviews: It seems obvious, but schools are better positioned to fend off attacks if they have strong systems in place to ensure and track compliance with their myriad federal obligations as well as internal clarity about where their decisions may draw federal opposition. Periodic internal compliance reviews, akin to the compliance reviews occasionally conducted by some federal agencies, may be helpful for some institutions to proactively identify points of vulnerability and either make changes or develop strategies for defending their positions.
  • Institutional compass: The mission of most, if not all, colleges and universities is to enable students to thrive and to participate in the contestation of ideas that defines higher education. By definition, this requires attention and resources attuned to differences as well as similarities among students. Clarity for institutional leaders and the campus community about how and why a school seeks to fulfill this mission can serve as a foundation and institutional compass to guide line-drawing and communications when federal or other pressure mounts. Support from higher education membership networks and organizations, like the American Council on Education, may be especially helpful for prompting cross-school conversations on these issues.

In short, work that aims to enhance campus life for students and other community members can also create a bit of a bulwark against government efforts to penalize and demonize individual schools and higher education more generally. By recognizing the broader impact of this work, colleges and universities, along with the organizations that support them, may be able to take concrete steps toward a stronger, more resilient future even in the midst of the extraordinary challenges of the present.

]]> /content/responding-to-federal-whac-a-mole-challengesand-opportunitiesfor-higher-education Fri, 07 Aug 2026 00:00:00 -0700 <![CDATA[Institute Files Joint Comment to FCC on Early License Renewal Order for ABC Stations]]> https://knightcolumbia.org/content/institute-files-joint-comment-to-fcc-on-early-license-renewal-order-for-abc-stations On July 29, the Knight Institute filed a comment with three other free speech organizations opposing an “almost unprecedented step” by the Federal Communications Commission (FCC) requiring eight Disney-owned ABC stations to renew their broadcast licenses years before they were otherwise due for renewal.

The FCC’s order requiring the ABC affiliates to renew their licenses early is the latest and most flagrant escalation of President Trump and FCC Chairman Brendan Carr’s campaign against broadcasters based on constitutionally protected speech. It is the first time in more than 50 years that the FCC has demanded early renewal and the first time it has done so across a network’s entire suite of owned-and-operated stations.

This action, taken in clear retaliation for Disney’s refusal to take Jimmy Kimmel off the air after public demands from the president and first lady, is a textbook case of unconstitutional jawboning—an act of government pressure directed at an intermediary to censor or distort the constitutionally protected speech of a third party. As the Institute and its partners argue in the comment, the Supreme Court has repeatedly made clear that government officials are not permitted to violate the First Amendment indirectly by means of coercive actions any more than they are permitted to violate it directly.

The Knight Institute has been at the forefront of efforts to raise awareness about and address the problem of government interference with social media platforms. In December 2023, the Institute filed an amicus brief in Murthy v. Missouri urging the Supreme Court to clarify the First Amendment limits on government efforts to pressure speech intermediaries. In June, the Institute endorsed the bipartisan JAWBONE Act, led by Sens. Cruz and Wyden, which would create new safeguards against the kind of government coercion at issue in the FCC’s treatment of Disney.

See the full comment here.

]]> /content/institute-files-joint-comment-to-fcc-on-early-license-renewal-order-for-abc-stations Thu, 06 Aug 2026 00:00:00 -0700 <![CDATA[Knight Institute Urges Appeals Court to Uphold Ruling Invalidating Trump Policy of Deporting Pro-Palestinian Protesters]]> https://knightcolumbia.org/content/knight-institute-urges-appeals-court-to-uphold-ruling-invalidating-trump-policy-of-deporting-pro-palestinian-protesters BOSTON—The Knight First Amendment Institute at Columbia University today filed its principal brief urging a federal appeals court to uphold a landmark ruling invalidating the Trump administration’s policy of targeting noncitizen students and faculty for arrest, detention, visa revocation, and deportation because of their pro-Palestinian advocacy. The brief asks the court to permanently block the policy in order to end its continuing chilling effect on campuses nationwide.

“The First Amendment does not allow the government to use immigration law to punish people for their political views,” said Xiangnong (George) Wang, staff attorney at the Knight First Amendment Institute. “Students and faculty should not have to censor themselves out of fear that simply speaking their minds will lead to arrest or deportation. The First Circuit should uphold the district court’s ruling and ensure that this unconstitutional policy cannot continue.”

The lawsuit was filed in March 2025 on behalf of the American Association of University Professors (AAUP) and the Middle East Studies Association (MESA).

The appeal follows a nine-day trial in July 2025 in which the district court found that the Trump administration had adopted a policy of targeting noncitizens for their pro-Palestinian advocacy in order to suppress protected expression. The court held that the policy violated the First Amendment and the Administrative Procedure Act and vacated the policy but declined to issue the injunction sought by the plaintiffs.

Today’s brief argues that stronger relief is necessary because the administration continues to deny that the policy exists while maintaining that it may use the very same immigration authorities that underpin the policy to carry on targeting noncitizens for their protected political speech. The brief asks the appeals court to ensure that the government cannot continue this unconstitutional conduct.

Read today’s brief filed in the U.S. Court of Appeals for the First Circuit here.

Read more about the case, American Association of University Professors v. Rubio, here.

In addition to the AAUP and MESA, plaintiffs include AAUP chapters at Harvard, Rutgers, and NYU. The associations’ members include tens of thousands of faculty and students across the country.

Lawyers on the case include Ramya Krishnan, Jameel Jaffer, Alex Abdo, Scott Wilkens, Carrie DeCell, Xiangnong (George) Wang, Stephany Kim, and Raya Koreh of the Knight First Amendment Institute; Ahilan Arulanantham; Michael Tremonte, Noam Biale, Alexandra Conlon, and Courtney Gans of Sher Tremonte LLP; and Edwina Clarke and David Zimmer for Zimmer, Citron & Clarke.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org

]]> /content/knight-institute-urges-appeals-court-to-uphold-ruling-invalidating-trump-policy-of-deporting-pro-palestinian-protesters Wed, 05 Aug 2026 00:00:00 -0700 <![CDATA[Ninth Circuit Vacates Injunction Against Perplexity’s AI Agents]]> https://knightcolumbia.org/content/ninth-circuit-vacates-injunction-against-perplexitys-ai-agents SAN FRANCISCO—The U.S. Court of Appeals for the Ninth Circuit today vacated a preliminary injunction that had barred Perplexity from enabling users of its AI-powered browser to perform tasks on Amazon.com. The court concluded that Amazon was unlikely to show that Perplexity “accesses” its computers in violation of the federal Computer Fraud and Abuse Act (CFAA) and its California counterpart because it is the user, with the help of Perplexity’s AI tool, who accesses Amazon’s platform. The Knight First Amendment Institute at Columbia University, the ACLU, and the ACLU of Northern California filed an amicus brief in the case urging the court to reject Amazon’s broader interpretation of the laws.

The following can be attributed to Jake Karr, staff attorney at the Knight First Amendment Institute at Columbia University:

“Whatever you think of Perplexity or AI, this is a win for user control and for the independent journalism and research that help the public understand how online platforms shape public discourse. Computer crime laws like the CFAA shouldn’t be stretched to penalize tools that automate a user’s access to their own information.”

Read today’s decision here.

Read the Knight Institute’s amicus brief here.

Read more about the case here.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org

]]> /content/ninth-circuit-vacates-injunction-against-perplexitys-ai-agents Tue, 04 Aug 2026 00:00:00 -0700 <![CDATA[Combatting Centralized Control Over Government Science]]> https://knightcolumbia.org/content/combatting-centralized-control-over-government-science The Problem

Vigorous skepticism and contestation are critical to science. Much like the values essential to free speech, science works only if critics have opportunities to raise disagreements and dissent.

Yet the U.S.’s design of the expert bureaucracy organizes government science in exactly the opposite way. Rather than aligning government science with professional norms, the production of that science is subject to centralized control in which political officials can shape the agencies’ scientific agendas, methods, interpretations, and even rely on cherry-picked peer reviewers. All of this can occur, moreover, with little transparency or opportunities for staff to voice disagreements.

Specifically, political officials within agencies and the White House regularly influence the staff’s scientific work while simultaneously insulating many of those interventions from public disclosure through confidentiality protections such as the deliberative process privilege. Agency peer review and scientific integrity programs remain ad hoc, opaque, and subject to substantial political control. Nor are these centralized features of government science solely the product of presidential control through the unitary executive. Congress and the courts generally (although not always) reinforce this top-down executive control on agency science in their ad hoc approaches to design and oversight, which rarely benchmark their reviews against scientific norms.

One might wonder how things got this bad. After all, ever since Vannevar Bush’s The Endless Frontier, the United States has treated government support for science as essential to public protection, national security, and economic growth. But in hindsight, it turns out that this conceptualization of the endless frontier lacked a structural blueprint for how to design government to ensure that the research was reliable. As a result, and particularly over time, both the government’s data collection and scientific analyses have become not only fragmented, but increasingly vulnerable to top-down control by the political branches. This centralized structure for the provision of government science, in turn, undermines the integrity of the science itself, as well as the trustworthiness of the resulting policies that rely on it.

The second Trump administration made these structural vulnerabilities noticeably worse. Unprecedented terminations of staff scientists, removal of public datasets, grant cancellations, the installation of industry-aligned political leadership across major public health and environmental agencies, and elevating political control over the awards for scientific grants are among the earmarks of his second term.

But although President Trump’s actions are more dramatic than past presidencies, this problematic centralized political control over government science long predates his administration, extending at least as far back as the Nixon administration. Over the last four decades, journalists, courts, inspectors general, and nonprofits like the Union of Concerned Scientists have documented political interference in agency science and the suppression or marginalization of internal dissent. The problems we are witnessing with Trump, then, are not simply partisan; they are hardwired into the structural design of the expert bureaucracy.

A Dissent-Based Intervention

To begin to mitigate this centralized control over government science, government scientific work must be subject to more rigorous and transparent systems of scientific scrutiny and dissent. The core goal is not to insulate science from politics altogether—likely impossible—but instead to institutionalize opportunities for constructive critique and dissent, including by staff scientists, in the government’s provision of science.

To accomplish this at a general level, agencies should be required to subject significant scientific analyses and related science-intensive decisions to independent and disinterested peer review administered through an institution or agency that is insulated from direct political control. Ideally, this expert scrutiny should extend not only to the review of key features such as the agencies’ methodological choices, data collection processes, the characterizations of uncertainty, or operating assumptions. It should also include scrutiny of how the expert bureaucracy itself is managed. Candidate agencies for conducting this review must have maximum autonomy from political control, such as the National Academies, the congressional bureaucracy such as the Government Accountability Office or the Congressional Research Service, or similarly designed independent review bodies. (We tried to come up with some more specific ideas on this independent oversight organization at pages 766-69 of this unrelated article.) Of course, there is no institutional arrangement that can fully eliminate politics or bias. But dispersing authority to external, respected organizations and creating visible opportunities for meaningful scientific disagreement is a solid first step to limit the risks associated with concentrated political control.

Equally important, agency scientists and staff should be permitted to place their own disagreements and competing scientific interpretations into the administrative record before this external review occurs. Reviewers can then evaluate both the agency’s analysis and the competing critiques. Designing a staff process in this way should protect opportunities for scientific dissent without simply transferring unchecked authority to individual staff scientists to challenge agency findings without undergoing their own independent peer oversight. Enabling staff to publicly disagree will also allow those outside the agencies to trace the internal scientific debates leading up to a final decision. (Note: Internal agency protections will also be essential to prevent political officials from bullying or threatening staff that take advantage of these dissent opportunities.)

Implementation

The proposed intervention could be institutionalized through any of the branches acting individually or simultaneously. For its part, Congress could require independent, disinterested review for major agency scientific analyses through authorizing or appropriations legislation. Agencies could adopt similar procedures internally through rulemaking or scientific integrity policies. Presidents could institutionalize aspects of the process through executive order or the Office of Information and Regulatory Affairs. And courts could treat evidence of disinterested critical peer review as relevant to the weight afforded agency scientific judgments (currently the courts rarely do this, despite lip service otherwise).

The precise design details will require considerable elaboration and will likely include some prescriptive requirements. For example, the specification of reviewer selection, transparency requirements, conflict rules, disclosure obligations, and the framing of review questions would all require careful attention. Nevertheless, some of these design challenges have been addressed in other institutional settings, so there are some examples to follow.

And, at base, if I am correct that reliable government science requires vigorous skepticism institutionalized through processes that align with scientific norms—rather than being centralized through top-down political control—we may have no other choice. Until we infuse our expert bureaucracy with opportunities for dissent and open-minded disagreements, the provision of government science risks becoming yet another mechanism through which political officials can exercise authority without meaningful accountability.

Why It Matters

Although meaningful opportunities for independent peer review and opportunities for dissent are essential to combatting the political centralization of government science, peer review is hardly a magic bullet. Institutionalizing a more rigorous peer review and dissent process will bring its own share of headaches and disappointments. As scientists and journal editors know well, peer review is highly imperfect, susceptible to its own biases and risks of manipulation, and can sometimes dampen scientific creativity. The literature on the limitations of peer review is substantial.

Even with these limitations, however, several overarching benefits offset peer review’s shortcomings.

First, as noted, critical scrutiny is a central feature of scientific inquiry and is hence fundamental to ensure the legitimacy and reliability of the resulting science. Until government processes provide assurances of open-minded skepticism and opportunities for dissent, the resulting science is vulnerable to being compromised and may not appear trustworthy at all.

Second, curating critical review can be used to help distinguish scientific disagreement from political manipulation. Virtually all contemporary governmental uses of science involve a mixture of science and policy. Review charges should specifically require reviewers and agencies to identify where scientific judgment ends and policy values begin. These expert delineations will sharpen the inevitably fuzzy lines for not only the public, but also for those making the policy decisions.

Third, scientists are ethically trained in ways that demand they be able to openly contest methodological choices and scientific characterizations with which they disagree, as well as to solicit independent peer review more generally. If deprived of these fundamental features of their profession, talented scientists might choose not to work in government or else will serve, only to find their contributions undermined by processes that conflict with their professional values.

Finally, the intervention could help rebuild public trust in government science. Public confidence depends not only on whether scientific conclusions are ultimately correct, but also on whether the processes generating those conclusions appear trustworthy and resistant to political manipulation. More than four decades of documented political interference have—according to several public opinion studies—undermined the public’s faith not only in government science but science more generally. Instituting government processes that align with scientific norms and professional standards may not fix the trust problem, but it should move public trust in a more positive direction.

 

]]> /content/combatting-centralized-control-over-government-science Thu, 30 Jul 2026 00:00:00 -0700 <![CDATA[Free Speech Organizations File Comment Demanding the FCC Stop Censorship Campaign Against ABC, Jimmy Kimmel]]> https://knightcolumbia.org/content/free-speech-organizations-file-comment-demanding-the-fcc-stop-censorship-campaign-against-abc-jimmy-kimmel

WASHINGTON—Four free speech groups filed a joint comment with the Federal Communications Commission (FCC) asking it to stop retaliating against ABC for the network’s editorial choices. 

Earlier this spring, the FCC called for eight Disney-owned ABC stations throughout the country to undergo license renewal, all years earlier than required, in apparent retaliation for Jimmy Kimmel’s jokes about the Trump administration. The comment argues that the early license renewal is unconstitutional jawboning: “When the chairman of a government entity with complete power over the stations’ very existence wields that power to jawbone disfavored speakers, it cuts against the very core of what the First Amendment protects. If the government can keep disfavored media off the air, it can deprive the entire American public of a free media landscape—a landscape that is an essential pillar of not just our Constitution, but also our liberty and democracy.” 

“Government officials cannot use their regulatory authority to coerce broadcasters into censoring or distorting protected speech. Yet that’s exactly what’s happening here,” said Ryan Morgan, policy fellow at the Knight First Amendment Institute. “These proceedings turn the FCC’s licensing authority into a tool for dictating which voices and viewpoints broadcasters carry. That’s precisely the kind of government coercion the First Amendment forbids.” 

Tens of thousands of people have flooded the public comment docket in defense of ABC, Jimmy Kimmel, and the First Amendment. By law, the commission is required to review all comments that are posted during the public comment period.  

“The FCC’s treatment of ABC is a clear and alarming abuse of power,” said Jenna Leventoff, senior policy counsel with the American Civil Liberties Union. “The administration cannot pressure networks to censor reporters, comedians, and critics simply because it doesn’t like what they have to say. That goes against the very core of the First Amendment and poses an existential threat to our democracy. The FCC must drop this proceeding now.” 

Last year, the FCC pressured ABC to take Jimmy Kimmel’s show off the air after President Trump criticized the show and Kimmel’s jokes about his administration. After an intense public pressure campaign, including an open letter signed by nearly 500 high-profile artists and over 40,000 people, the show was returned to air.  

“This is yet another example of the FCC crusade to bludgeon broadcasters into submission,” said Erika Sanders, counsel at the National Coalition Against Censorship. “There is zero doubt that Chairman Carr believes the mandate of the FCC is to serve as the chief enforcer of the President’s propaganda — a belief that is as wrong as it is dangerous to the freedom of expression.” 

The comment was submitted by the American Civil Liberties Union (ACLU), the National Coalition Against Censorship (NCAC), the Future of Free Speech, and the Knight First Amendment Institute at Columbia University. Earlier this week, the ACLU, NCAC, and 20 other advocacy organizations sent a letter to Disney thanking them for defending the First Amendment and encouraging them to continue fighting the FCC’s unconstitutional attacks.  

“When a license can be threatened over a joke or a newsroom’s editorial judgment, broadcasters stop waiting to be censored and start self censoring,” said Ashkhen Kazaryan, senior legal fellow at The Future of Free Speech. That is the chilling effect the First Amendment exists to prevent.” 

The comment can be viewed online here.

For more information, contact Gabriel Tyler, gabriel.tyler@knightcolumbia.org. 

]]> /content/free-speech-organizations-file-comment-demanding-the-fcc-stop-censorship-campaign-against-abc-jimmy-kimmel Wed, 29 Jul 2026 00:00:00 -0700 <![CDATA[Eleventh Circuit Asked to Order Release of Special Counsel Jack Smith’s Report]]> https://knightcolumbia.org/content/eleventh-circuit-asked-to-order-release-of-special-counsel-jack-smiths-report ATLANTA—The Knight First Amendment Institute at Columbia University filed its reply brief yesterday in consolidated appeals seeking public access to Special Counsel Jack Smith’s report on President Trump’s alleged mishandling of classified documents after leaving office in January 2021. The filing marks the close of briefing and asks the Eleventh Circuit to reverse the district court’s orders suppressing the report and to direct that a redacted version be made public as part of the court record.

The following can be attributed to Scott Wilkens, senior counsel at the Knight First Amendment Institute at Columbia University:

“The Special Counsel’s report concerns allegations of grave misconduct by President Trump and should be released to the public. Every day that the report stays under seal deprives the American public of the information necessary to judge for themselves the character and fitness of the nation’s highest official. The Eleventh Circuit should reverse Judge Cannon’s orders that are keeping the report secret and direct that it be made public as soon as possible.”

Read today’s brief here. 

Read more about the case here.

For more information, contact: Gabriel Tyler, gabriel.tyler@knightcolumbia.org

]]> /content/eleventh-circuit-asked-to-order-release-of-special-counsel-jack-smiths-report Tue, 28 Jul 2026 00:00:00 -0700 <![CDATA[Trump Cannot Use Immigration Law to Silence Technology Researchers]]> https://knightcolumbia.org/content/trump-cannot-use-immigration-law-to-silence-technology-researchers Earlier this month, a federal court suspended a Trump administration policy that threatened noncitizen technology researchers and advocates with immigration consequences based on their work studying and reporting on social media platforms and their societal impacts. The ruling marks an initial victory for the Coalition for Independent Technology Research (CITR) and an important check on the government’s efforts to use immigration law against protected research and advocacy.

The policy is the latest front in a campaign that began during President Donald Trump’s first administration, when he and his allies began targeting platform researchers, fact-checkers, and advocates by recasting their work as “censorship.” The government’s campaign against the so-called “censorship-industrial complex” has included lawsuits, administrative actions, and congressional investigations. In Trump’s second term, his administration extended that campaign into the immigration system.

Chief Judge James E. Boasberg of the U.S. District Court for the District of Columbia found that the policy likely discriminates on the basis of viewpoint in violation of the First Amendment.

Announced as “a new visa restriction policy” in May 2025, the policy directs consular officers to scrutinize visa applicants for content-moderation work or other work relating to social media platforms that the administration characterizes as censorship. As the court found, the policy sweeps broadly, instructing officers to pursue visa denials based on a wide range of such work. In December 2025, the government expanded the policy beyond visa applicants, using it to subject lawful permanent residents to potential deportation based on work related to disinformation. In announcing these and other enforcement actions in December, Secretary of State Marco Rubio declared that the State Department stood “ready and willing to expand” the list of targets.

The policy has disrupted the work of CITR and its members. CITR brings together academics, journalists, and civil society organizations working to advance, defend, and sustain independent research into technology’s effects on society. Researchers affiliated with CITR collect data, document disinformation and other online harms, and examine how technology companies enforce their rules and respond to risks on their platforms.

After the policy’s announcement, and especially after the government began enforcing it—against the leaders of two CITR member organizations, among others—noncitizen researchers began pulling back. Some halted or narrowed their work because they feared losing a visa or facing deportation. Others became reluctant to speak publicly about their research or about the policy’s effect on their work.

The result was a direct threat to a field that depends on researchers’ ability to scrutinize powerful companies and publish their findings openly. Work that had been reported in public was pushed toward anonymity and silence. The court found that these effects had caused CITR itself a concrete injury, allowing the organization to challenge the policy.

The court then concluded that the policy likely violates the First Amendment because it targets particular viewpoints. As the court explained, the policy calls for exclusion and deportation based solely on whether a noncitizen’s work is “pro-moderation.” The policy does not apply neutrally across the debate over platform governance. Instead, the government “presses its enforcement thumb against one side of the scale”: researchers and advocates who argue that platforms should do more to moderate content, label disinformation, restrict abuse, share data with researchers, or address harms amplified by their systems.

The government argued that the policy was necessary to protect Americans’ speech from coercion by foreign officials. The court acknowledged that the government may have a legitimate foreign policy interest in excluding foreign officials responsible for censoring Americans’ speech in the United States. But it concluded that the policy, as designed and applied, burdened the speech and association rights of researchers, academics, fact-checkers, and others who study content moderation or work in the field.

Because the policy discriminated against particular views, the court suspended it while the case proceeds.

This initial victory in CITR v. Rubio reflects a core constitutional principle: The government cannot punish people because it disfavors their speech, whether through immigration enforcement or other means.

That principle has also shaped other recent challenges to the administration’s treatment of noncitizen students, faculty members, and activists. In AAUP v. Rubio, a federal court likewise ruled that the Trump administration violated the First Amendment by seeking to arrest, detain, and deport noncitizen students and faculty engaged in pro-Palestinian advocacy. Together, the cases signal growing judicial resistance to the use of immigration authority to shape public discourse.

The stakes are especially high for independent technology research. Researchers help the public understand how platforms shape political discourse, enforce their rules, amplify harmful material, and exercise power over the information people see. The work of these researchers is increasingly important as rapidly developing AI systems give technology companies even greater influence over public discourse and access to information. The government is free to dispute their findings and oppose their recommendations. It may not threaten exclusion or deportation to determine which questions may be asked, which conclusions may be published, or which views may enter public debate.

The ruling marks an important limit on the administration’s anti-“censorship” campaign: The government cannot claim to defend free expression while using immigration law to punish researchers and advocates for the views they express.

]]> /content/trump-cannot-use-immigration-law-to-silence-technology-researchers Mon, 27 Jul 2026 00:00:00 -0700 <![CDATA[Legal Organizations Across Ideologies Urge Appeals Court to Uphold Block on President Trump’s Unconstitutional Attacks on Harvard]]> https://knightcolumbia.org/content/legal-organizations-across-ideologies-urge-appeals-court-to-uphold-block-on-president-trumps-unconstitutional-attacks-on-harvard BOSTON—Late yesterday, legal organizations across the ideological spectrum urged the United States Court of Appeals for the First Circuit to uphold a district court’s order blocking the Trump administration’s attempted hostile ideological takeover of Harvard University.

The federal government decided to withhold billions of dollars in research funding from Harvard University after the university refused to vet its students, faculty, and course offerings for “ideological diversity” and place certain departments and centers at odds with the government’s preferred viewpoint—such as the Department of Near Eastern Languages and Cultures—under a third party audit.

On June 9, 2025, the ACLU, ACLU of Massachusetts, and numerous other organizations filed an amicus brief in support of Harvard’s motion for summary judgement. On September 3, 2025, the federal court in the District of Massachusetts blocked the government’s attacks on Harvard. The judge noted that the Trump administration tried to “force Harvard to better manifest the government’s favored worldview,” in direct violation of the university’s right to free speech.

Today, the following organizations, together filed an amicus brief asking the appellate court to affirm the lower court’s ruling that the administration's actions are unconstitutional:

  • ACLU
  • ACLU of Massachusetts
  • ACLU of Maine
  • ACLU of New Hampshire
  • ACLU of Puerto Rico
  • ACLU of Rhode Island
  • Cato Institute
  • Electronic Frontier Foundation
  • Knight First Amendment Institute
  • National Coalition Against Censorship
  • Reporters Committee for Freedom of the Press
  • Rutherford Institute

The brief’s key arguments:

  • “The administration’s conduct is unconstitutional any way you slice it: It represents an effort by this administration to impose ‘its own conception of speech nirvana’ on a private institution . . . ; it improperly seeks to leverage federal research funds in a viewpoint-based way, to control speech outside of the scope of the program, and to control the work of a private university—each of which is unconstitutional in its own right.” The government sought to unconstitutionally coerce Harvard to hire faculty, admit students, and make research choices that aligned with the government’s preferred ideological tilt, a viewpoint-based condition for funding that is unconstitutional.
  • “The First Amendment principle of academic freedom prohibits the government from imposing ideological admissions, hiring, and programmatic requirements on colleges and universities.” The First Amendment retaliation and coercion in this case is all the more egregious because it targets an institution of higher education, whose choices about who to teach, what to teach, and who should do the teaching are all protected by the First Amendment.

“The Trump administration’s attacks on universities are attacks on democracy itself,” said Alex Abdo, litigation director of the Knight First Amendment Institute. “Universities are the stewards of society’s search for basic knowledge, and the government should not be dictating what courses may be taught, what ideas may be explored, and which students may be admitted to learn.”

“The government’s abuse of its funding power here is meant as a message to all of us: get in ideological line or the government will go after you,” said Vera Eidelman, senior staff attorney with the ACLU. “This ideological bullying is an abuse of the executive’s power, and the appellate court should affirm that it violates the First Amendment, or the floodgates of retaliation and coercion will open to us all.”

"The Trump administration's attempt to bully Harvard into submission is a brazen attack on free expression and academic freedom, which are essential pillars of our democracy," said Jessie Rossman, legal director at the ACLU of Massachusetts."Universities are places of free inquiry, where scholars expand their horizons, advance science and knowledge, and enrich our culture. Academic institutions are part of the bedrock of Massachusetts, and residents of the Commonwealth understand that we all lose if such attacks go unchallenged. Now more than ever, it is critical that institutions exercise the courage to fight back. ACLUM is proud to stand alongside co-amici in defense of the First Amendment."

“The government is attempting to unlawfully suppress academic freedom, one of our nation’s deepest commitments,” said ACLU of Maine Legal Director Carol Garvan. “It is fundamental to free speech, free thought, and societal advancement that teachers and students remain free to ask questions, debate, study, and present their views. And the government’s interference won’t stop at Harvard. The administration’s unlawful conduct here could open the floodgates to retaliation and ideological bullying of private actors across the country. We hope the First Circuit will uphold the district court’s decision.”

“The ACLU of Rhode Island is proud to stand with the organizations from across the public, cultural and political spectrum who are all aligned in their opposition to the federal government’s effort to leverage federal grants to coerce and intimidate private colleges and universities to abandon that most fundamental space for free thought and expression that higher education represents and instead step in line with the administration’s ideological viewpoints,” said Lynette Labinger, Cooperating Attorney for the ACLU of Rhode Island. “As we say in our brief, ‘Allowing the administration’s unlawful conduct here could open the floodgates to retaliation, coercion, and ideological bullying of private actors across sectors.’”

“Private educational institutions need to be free to select and pursue their missions, and the First Amendment does not permit the government to force them to replace that chosen mission with someone else's notion of ideological balance,”said Walter Olson, senior fellow at Cato's Robert A. Levy Center for Constitutional Studies. “The courts have made clear that the government may not use funding leverage to coerce recipients into surrendering constitutional rights of expression. Beyond that, any federal move to define and dictate what is ideological balance in the faculty makeup of a department or among the students in a classroom would give Washington improper power to decide what viewpoints are or aren't important enough to merit representation as well as discretion to retaliate against faculty, programs and students it dislikes for ideological reasons. That this administration demanded that Harvard target its divinity school for an ideological overhaul—its divinity school!—should make clear the First Amendment dangers here.”

“Universities are the epicenter for the free exchange of ideas, the foundation for our First Amendment protections and democracy itself,” said Erika Sanders, counsel at the National Coalition Against Censorship. “This administration’s attempt to force its own views upon Harvard is antithetical to the purpose of education and flies in the face of the principles of free expression.”

“These actions represent a dangerous incursion by the government into First Amendment-protected speech,” said Gabe Rottman, vice president of policy at the Reporters Committee for Freedom of the Press. “If successful, they could lay the groundwork for federal interference in speech beyond just universities, including the targeting of news organizations and journalists for perceived ideological 'bias.'"

“By weaponizing the federal government to silence dissent and force conformity, the Trump administration is waging war against the Constitution, the rule of law, and anyone who dares to think independently,” said John W. Whitehead, president of The Rutherford Institute. “If the government can dictate what is taught in a private university’s classroom, it won’t stop there—it will seek to dictate what is said in the pulpit, printed in the press, and spoken in the streets. This kind of ideological coercion is the hallmark of authoritarian regimes and precisely the kind of tyranny the First Amendment was intended to prevent.”

You can read the brief here. 

For more information, contact Gabriel Tyler: gabriel.tyler@knightcolumbia.org 

]]> /content/legal-organizations-across-ideologies-urge-appeals-court-to-uphold-block-on-president-trumps-unconstitutional-attacks-on-harvard Thu, 23 Jul 2026 00:00:00 -0700 <![CDATA[Public Needs Greater Transparency Into How Generative AI Systems Are Built]]> https://knightcolumbia.org/content/public-needs-greater-transparency-into-how-generative-ai-systems-are-built NEW YORK—The Knight First Amendment Institute at Columbia University today filed an amicus brief defending a California law requiring developers of generative AI systems to disclose information about the data they use to train their models. The brief argues that xAI, which has sued to block the law on multiple constitutional grounds, has not shown that the law violates the First Amendment.

“Generative AI systems are now shaping nearly every facet of our online lives, but the public knows very little about how they are built, operate, and affect our information ecosystem,” said Stephany Kim, legal fellow at the Knight First Amendment Institute. “The companies building these systems shouldn’t also be the ones deciding what the public gets to know about them. Transparency laws can help close that information gap and enable people to make more informed decisions.”

The Knight Institute’s brief argues that governments should have substantial leeway to enact transparency laws that facilitate the free flow of accurate and useful information about commercial products and services. It urges the Ninth Circuit to affirm the district court’s denial of a preliminary injunction with respect to xAI’s First Amendment claim.

Read today’s amicus brief filed in the U.S. Court of Appeals for the Ninth Circuit here.

Read more about the case here.

Lawyers on the brief include Stephany Kim, Jake Karr, Xiangnong (George) Wang, and Alex Abdo of the Knight First Amendment Institute.

For more information, contact: Gabriel Tyler, gabriel.tyler@knightcolumbia.org 

]]> /content/public-needs-greater-transparency-into-how-generative-ai-systems-are-built Wed, 22 Jul 2026 00:00:00 -0700 <![CDATA[xAI v. Bonta]]> https://knightcolumbia.org/cases/xai-v-bonta On July 22, 2026, the Knight Institute filed an amicus brief in xAI LLC v. Bonta, a case concerning a California law requiring developers of generative AI systems to disclose information about the data they use to train their models.

The Institute’s amicus brief argues that the public needs greater transparency into the generative AI systems that are fast becoming part of our online lives. The large technology companies that develop these systems gatekeep information about how they are built, how they operate, and how they impact our information ecosystem. Transparency laws can disrupt these information monopolies and empower users to make informed decisions as both consumers and citizens.

The Institute’s brief further argues that transparency laws that facilitate the free flow of accurate information about commercial products or services should be subject to a relaxed standard of review under the First Amendment. Under that standard, the brief argues, xAI has not shown that California’s generative AI transparency law violates the First Amendment because the law advances the state’s interest in informing users about generative AI systems and does not appear to impose an undue burden on xAI’s speech. 

Status: Briefing ongoing.

Case Information: x.AI LLC v. Bonta, No. 26-1591 (9th Cir.).

]]> /cases/xai-v-bonta Wed, 22 Jul 2026 00:00:00 -0700 <![CDATA[What Courts Can Do and How to Help Them Do It]]> https://knightcolumbia.org/content/what-courts-can-do-and-how-to-help-them-do-it For those who value American universities for their essential contributions to both knowledge production and education on a global scale, these are tough times. In my view, the problem is not only or primarily the current president, but the expansive vision of a plebiscitary president—a “unitary executive” in control of every decision-making body in the federal government—that the Federalist Society has advanced for decades. This vision is especially dangerous when combined with the ambitions of many in the present Republican Party to extend their power from the political sphere to all manner of other spheres, including knowledge production and education. Those spheres depend on the delegation of federal government decisions to independent expert bodies that can engage in stable, long-term, reasoned decision-making as they make complex multi-year bargains with their applicants and grantees. Such delegation is part of a fundamentally capital-P Progressive conception of government. It is in profound tension with the vision of presidential power that six Supreme Court justices are currently inscribing into American law.

However, American courts other than the Supreme Court have sometimes been able to use the limited tools available to them to stand athwart this unfolding historic disaster and successfully yell “stop.” In 2025, when the Trump administration attacked my own institution, UCLA, with several waves of federal grant cancellations and a demand for a $1 billion payment (and more), the response from the University of California itself was passive, but two independent lawsuits by faculty, the American Association of University Professors (AAUP), and labor unions representing UC employees were remarkably successful, resulting in federal district court orders that restored nearly all the “suspended” federal grants and put in place injunctions against the continued federal government harassment of the university.

It is not an accident that courts played this role. Trial courts read the statutes lawmakers write. The core norms of the rule of law and the professional culture of judging are inherently receptive to the key things universities want: regularity, reasoned decision-making, consistency, impersonal judgment, expertise. So: What could we do to more effectively enable courts to use their powers to constrain executive actions that undermine these things?

First, we need statutes. On the model of an anti-SLAPP Act, we need a federal statute that creates expedited procedures (and standing, see below) for individual professors, researchers, and universities—if only they’d ever stick up for themselves—to sue and win quick injunctions and damages for government actions that may have other pretexts but whose real purpose is to strategically suppress government-disfavored speech or viewpoints by grantees (or people or institutions associated with grantees). An anti-SLAPP Act for DOGE would not solve everything, but what such a statute would do that is important is focus the judicial inquiry in the right place: not on whether there’s a sufficient basis for the government’s asserted pretexts, but rather, on whether the government’s actual motivation was to exert political control over speech or viewpoints at (or of) the university. Some judges find their way to this inquiry already, but a statute would help a lot.

There is also a broader statutory change that would support an anti-SLAPP Act for DOGE but would also affect a broader range of cases: Congress should make clear that researchers and others whose work is funded by federal grants have standing to sue when the government acts unlawfully in making, renewing/nonrenewing, suspending, or otherwise administering federal research grants. Courts have been mixed on this issue. If 2025 and 2026 have taught us anything about federal grantees, it is that many large institutions are too paralyzed by their own fears and stakeholders to defend their rights adequately. Thus, it is essential that those with the most at stake—the individual researchers whose careers depend on the grants—unambiguously have standing to sue for grant-related decisions that violate federal law.

Second, we need new norms and rules about how government grantmaking works and where money resides during the course of a multi-year funded project.  Possession is nine tenths of the law in part because possession determines which side must go to court. We should restructure grantmaking across many agencies so that once a multi-year funding decision is made, the funds for the full grant go in the first year from the Department of the Treasury to an independent entity, which then releases the funds on an appropriate schedule to the grantee unless the government requests that the independent entity rescind the grant. If the independent entity finds the government’s reasons for rescinding the grant unpersuasive then the government must go to court. Instead of grantees needing to obtain a court order to restart a “suspended” grant, this burden will fall on the government.

In our federal system, the only way to set up an independent governmental entity that is truly and unambiguously outside the control of a plebiscitary president is for that entity to be created by the states. Thus, federal law should authorize, and state governments should create, state entities to act as repositories for federal grant funds and distribute them over time to universities and other grantees within their states. These independent state entities should not have any discretion to refuse to distribute funds that both the federal government and the grantees want distributed. But they should be allowed to invest the money sitting in escrow in U.S. Treasurys, and use any interest to make their own small grants aimed at building institutional infrastructure, such as at universities, to better apply for federal grants.

There are large transition costs involved in switching from funding, say, 20 percent of five different five-year grants in a year to pre-funding 100 percent of a single five-year grant in a year. Indeed, this sort of temporal shift has recently been a tool of the Trump administration’s efforts to cut science funding. There is a way around the problem, however. A Congress that is authorizing a new regime of state holding institutions should take the opportunity to spend much more annually for several years on each federal grant program in order to make this transition without reducing the total amount actually distributed to grantees each year. The large temporary transition cost will pay lasting dividends in building sources of independent expert authority over these matters that sit firmly outside the political control of any future “unitary executive.”

Third, we need statutory reforms of the Tucker Act and more generally the procedures of the U.S. Court of Federal Claims (USCFC). Currently, the federal government’s strategy of moving fast and breaking contracts is enabled by the way claims against the federal government for breach of any contract are funneled into a court whose procedural and substantive differences from federal district courts make it impossible to enjoin or quickly remedy lawless decisions.  I am currently agnostic about whether the better strategy is to drastically improve the USCFC (granting the power to issue injunctions, reforms to increase speed and flexibility), move grants for knowledge production and education out of the USCFC by expressly authorizing federal district court litigation about these matters, or both.

Fourth, we need reforms that build the capacity of the recipients of federal grants to band together to use courts when necessary. The past year or so at UCLA has taught me that the central challenge faculty and other grantees have in bringing legal claims against the federal government—or intervening when the federal government has brought a claim against a university—is simply money. Litigation is expensive, especially if done well. Congress could help by creating and broadening fee-shifting provisions for certain categories of lawsuits against the federal government.  States could help by creating offices within the state attorney general’s office to provide direct legal help to faculty and others attempting to use litigation to challenge arbitrary or discriminatory decisions by the federal government. Law firms could engage in more of this work pro bono. Faculties could organize themselves into AAUP chapters or faculty associations. States could facilitate such organizing by legally recognizing such groups through law separate from general labor law. And so on.

The capital-P Progressives who championed independent expert agencies a century ago would be surprised and likely horrified by this list of reforms that rely on courts. In their view, much of the point of creating expert executive agencies was to get their decisions out of the hands of courts. But it turns out that the courts were not the most dangerous branch to the goal of building the informed, stable, expert government decision-making bodies on which global scientific and educational progress depends.

]]> /content/what-courts-can-do-and-how-to-help-them-do-it Tue, 21 Jul 2026 00:00:00 -0700 <![CDATA[Justice Department’s Pursuit of Times Journalists’ and Family Members’ Phone Records Threatens Press Freedom]]> https://knightcolumbia.org/content/justice-departments-pursuit-of-times-journalists-and-family-members-phone-records-threatens-press-freedom NEW YORK—The New York Times reported today that the Justice Department sought the phone and text-message records of several Times journalists, two reporters’ spouses, and one reporter’s mother in an effort to identify confidential sources behind the newspaper’s reporting on security concerns involving President Trump’s new Air Force One jet. The Times has asked a federal judge to quash the subpoenas.

The following can be attributed to Katie Fallow, deputy litigation director at the Knight First Amendment Institute at Columbia University:

“This is an extraordinary escalation in the Trump administration’s campaign to intimidate the press. The Justice Department didn't stop at journalists—it went after their family members, too. That sends an unmistakably chilling message to anyone thinking about reporting on this administration. Every American who values a free and independent press should see this for what it is: an abuse of power designed to silence scrutiny.”

For more information, contact: Gabriel Tyler, gabriel.tyler@knightcolumbia.org.  

 

]]> /content/justice-departments-pursuit-of-times-journalists-and-family-members-phone-records-threatens-press-freedom Mon, 20 Jul 2026 00:00:00 -0700 <![CDATA[Reducing the Concentration of Power]]> https://knightcolumbia.org/content/reducing-the-concentration-of-power At this moment, power within U.S. higher education is overwhelmingly concentrated within governing boards and governments, particularly federal and state. To better protect higher education from political attacks intended to restrict or distort its work, that power needs to be spread out to two groups with deeper practical expertise and less uniform alignment with particular ideologies: actual workers on college campuses and accreditors.

For individual college campuses, we have to find ways to create robust centers of power and collective action for faculty and staff (as appropriate for their work category). Shifting some of the power concentrated within governing boards to higher education workers could happen via a number of channels but, given the likelihood that this will not be a board-driven decision, it will require external pressure on the boards to make changes. I reviewed research and polled several higher education boards experts in the United States as background for this post. One of the key pressure points to shift the power concentrated within boards would be for faculty, staff, students, and alumni to use their First Amendment rights to advocate for the future of higher education. In order for that to happen, we would have to restructure our environment to make it easier for faculty and staff to participate in collective action. 

Creating the capacity for higher education workers to exercise their First Amendment rights would require bolstering the conditions that make collective action more likely, including access to robust mutual aid funds, education on labor rights, and zealous legal representation. I want to highlight the mutual aid point. A key reason workers give for not standing up against censorship and oppression is the potential loss of their job, and its commensurate benefits, and potential retaliation from their employer. Even when workers believe that ultimately they will be able to successfully sue their employer if they are fired, as several have recently done, a substantial portion of workers do not have robust enough savings to survive while legal proceedings advance. A structure that allows for collective action in other industries, up to and including strikes, is the existence of centralized funds that are made available to members. Robust mutual aid funds (coordinated at the state or national level), could foster an environment where faculty and staff are less willing to quietly go along with political repression. Empowering faculty and staff is a critical first step to being able to rebalance power distribution and advance additional remedies (e.g., reconstructing board membership to include more people with higher education expertise including faculty, staff, and students). Boards are unlikely to make changes like this on their own. The primary option to secure this change would be to find ways to strongly persuade them that this is a better alternative than their other choices.

Turning to government concerns, in U.S. higher education, we have a triad system used to hold colleges and universities accountable. The triad is comprised of the federal government, state governments, and accreditors. We have allowed one leg of the accountability triad, accreditors, to be severely weakened. While states and the federal government have increased their power over colleges and universities, accreditors have fallen back. This reality affects undergraduate and graduate education. Historically, accreditors were a key force in the push to racially integrate colleges and universities. Scholars note the way that the Southern Association of Colleges and Schools directly intervened to ensure that the leadership of states like Alabama were aware that failure to integrate would result in the loss of their accreditation and ability to do things like receive Title IV funds for federal financial aid. In our present moment, accreditors have allowed outright politicization of varied processes, including the University of Florida’s search for a new president which includes what could be described as a political litmus test, several Texas public universities’ restrictions on what can be taught and researched, and more. The Trump administration is currently proposing a complete overhaul of accreditation, which would allow for even further weakening of the system and the ability for less reputable organizations to become accreditors. To intervene, and shore up the accountability powers of accreditors, academic communities and other concerned stakeholders would need to provide robust public comments as the federal government presented new rules and regulations on college accreditation and be prepared to aggressively pursue legal action when the final rules are determined if there are violations of the law.

I have focused this piece on concrete solutions to reduce the concentration of power for everyday members of the academic community. Regardless of the method used, a greater dispersion of power and authority is a necessary step to ensure the capacity for free expression within the U.S. higher education system.

]]> /content/reducing-the-concentration-of-power Mon, 20 Jul 2026 00:00:00 -0700 <![CDATA[Federal Court Suspends Trump Immigration Policy Targeting Technology Researchers]]> https://knightcolumbia.org/content/federal-court-suspends-trump-immigration-policy-targeting-technology-researchers WASHINGTON—A federal court today temporarily blocked the Trump administration from enforcing an immigration policy targeting noncitizen researchers, advocates, fact-checkers, and trust and safety workers for visa denials and revocations, detention, and deportation based on their work. The Knight First Amendment Institute at Columbia University and Protect Democracy filed the lawsuit earlier this year on behalf of the Coalition for Independent Technology Research (CITR).

“This policy punishes researchers for work the public needs and the First Amendment protects,” said Carrie DeCell, senior staff attorney at the Knight First Amendment Institute, who argued the motion before the court in May. “We’re glad the court recognized the serious constitutional harms this policy is already causing and blocked the government from enforcing it while the case proceeds.”

In today’s decision, Chief Judge James Boasberg concluded that the policy unconstitutionally discriminates against one set of viewpoints in the public debate surrounding social media. As he wrote, the policy “sweeps into the category of ‘foreign censorship’ a substantial measure of the research, reporting, advocacy, and association through which CITR and institutions like it carry out their protected work, and it does so on the basis of viewpoint, in violation of the First Amendment.”

“The Coalition welcomes Judge Boasberg’s decision, which will prevent the government from using immigration threats to intimidate and censor independent researchers,” said Brandi Geurkink, executive director of the Coalition for Independent Technology Research. “Researchers who work independently from the technology industry provide a much-needed window into the real impacts of these products on our lives and in our communities, and this policy has had a deep chilling effect on their work. Our coalition will continue to fight for the right to research free from government censorship.”

CITR members include research organizations, academics, and journalists who study digital platforms and their societal impacts. Their work helps inform public debate and enables consumers, advertisers, platforms, and policymakers to better understand emerging technologies and make more informed decisions.

“Today’s ruling is a major victory in our ongoing fight to protect free speech and independent technology research,” said Nicole Schneidman, tech counsel and policy strategist at Protect Democracy. “The court’s order allows researchers and advocates who study and report on online trust and safety to continue their important work without the fear of retaliatory visa denials or deportations while we continue to advocate for permanent relief. While this decision is an important win, this case is not over. We look forward to continuing to defend the rights of independent technology researchers.”

Read today’s decision by Chief Judge Boasberg of the U.S. District Court for the District of Columbia here.

Read more about the case, Coalition for Independent Technology Research v. Rubio, here.

Lawyers on the case include Carrie DeCell, Raya Koreh, Kiran Wattamwar, Anna Diakun, Katie Fallow, Alex Abdo, and Jameel Jaffer for the Knight First Amendment Institute, and Nicole Schneidman, Scott Shuchart, and Deana El-Mallawany for Protect Democracy.

For more information, contact: Gabriel Tyler, gabriel.tyler@knightcolumbia.org. 

]]> /content/federal-court-suspends-trump-immigration-policy-targeting-technology-researchers Tue, 14 Jul 2026 00:00:00 -0700 <![CDATA["Lawyering Without Law" Transcript: Ep. 6]]> https://knightcolumbia.org/content/lawyering-without-law-transcript-ep-6 Tom Dannenbaum:

Does it still make sense to articulate what we're seeing as violations of international law? Does it make sense to continue to invoke these principles when they seem to be no longer sustainable? My own view on that is that it does still make sense to articulate them in those terms in the current moment.

Aslı Ü. Bâli:

I think what's distinctive about the U.S.'s conduct is that one might argue that the U.S. is in fact taking aim directly at the legal system itself rather than merely engaging in lawlessness.

Madhav Khosla:

Welcome to “Lawyering Without Law,’ a podcast by the Knight First Amendment Institute, where we explore the unique and important role that lawyers and the legal profession play in defending democracy or facilitating a country's slide into authoritarianism. I'm Madhav Khosla. I'm the Knight Institute senior fellow and a professor at Columbia Law School. Joining me back on the podcast is my co-host, Katy Glenn Bass, the Knight Institute's research director. Hi, Katy. Welcome back.

Katy Glenn Bass:

Thanks, Madhav. Joining us today are two guests, Tom Dannenbaum and Aslı Bâli. Tom is a professor of law at Stanford University, whose work focuses on the laws of war, international accountability and human rights. Asli is a professor of law at Yale University, whose scholarship explores international law, human rights, and comparative constitutional law, with a focus on the Middle East.

Madhav Khosla:

We're having both scholars on the podcast to discuss the role of international law in times of conflict, the pursuit of accountability, and what the future of the international order may look like. Tom, Aslı, welcome to Lawyering Without Law.

Tom Dannenbaum:

Thanks for having me.

Aslı Ü. Bâli:

Thanks so much for having us, Madhav.

Madhav Khosla:

So just to start us off, international law is often described as a mechanism for accountability, but one question I think we might ask is accountability for what? Individual crimes, state conduct, structural violence, impunity, or the broader political order that makes repeated violations possible? Asli, I was wondering if we might actually begin with you.

Aslı Ü. Bâli:

Sure. So to begin with, I think it's a great question. And where you ended the question, which is thinking about international law as a mechanism for accountability for broader structural systems that make violations possible, is almost exactly the inverse of how international law works. In other words, international law is actually the permissive structure that makes that possible in many ways because it's the structure that regulates relations between states and sets the terms of those relations, and has done so since before two thirds of states in the international system today were sovereign. So it was the legal order that permitted things like colonialism, slavery, and the like. It only outlawed or held accountable those who challenged in some ways the order of power in which gross asymmetry is dictated, the terms on which interstate relations were conducted. That changed to some degree in the 20th century, but the system continues to bear the hallmarks of its origins in many respects.

And when we speak about accountability in the international legal system, we are speaking of something far, far narrower than the frame that you provided. For individuals, there's accountability for only a tiny fraction of the kinds of crimes for which they might be held accountable in a domestic context. In fact, the cognizability of something as a crime at the international level is very, very different than in the domestic context. There's only a narrow band of affairs that are governed through international criminal law. Accountability for states is a slightly different matter, and it also depends on how you define accountability. I think we have to shift our lens on what constitutes law away from an imagined universe of courts and police enforcement structures and executives and towards a system in which reciprocal constraint and ex ante expectations are the principle deliverables of international law in terms of constraint.

And there's a very limited repertoire of ex post measures that can be taken to hold anything or anyone to account. And they rely much more on political mechanisms than on legal mechanisms, much more on bilateral conduct between states, and sometimes multilateral conduct between states, than determinations in a court, whether it be a criminal court, in the case of individuals, or a standing interstate court in terms of holding states accountable. Having said all of this, there have been some very high profile instances of what appear to be efforts at accountability at the international level that have concentrated the mind, if you like, on the possibilities that international law could offer something more, including some version of ex-post accountability.

And there are an array of examples one could point to. The much more active and geographically broader mandate that the ICC, the International Criminal Court has, in the period since the Russian invasion of Ukraine, exercised, escaping at least from the criticisms of its first two decades, that it was exclusively a court for Africa or some high profile ICJ cases, including especially the case brought by South Africa against Israel alleging violations of the Genocide Convention, which was preceded by a case brought by the Gambia against Myanmar on similar allegations.

Andrea Sanke:

Can a case against genocide succeed at the International Court of Justice? Gambia's legal action against Myanmar for the systematic persecution of its Rohingya minority begins at the ICJ. But with the rule of international law more fragile than ever, will the Rohingya see justice, and will future cases against genocide see their day in court?

Aslı Ü. Bâli:

So there are these high profile instances that present the possibility at least of some measure of accountability. What that would mean remains a political question, ultimately. And one should understand the international legal order as an order that is structured around a set of norms that were agreed by states, consensually, but that is in effect a political system of both mutual self-constraint and of an order through which multilaterally new rules can be set again in a consensual fashion by states, not by some external grand legislator or some philosopher kings that are identifying what the best norms would be to structure the system. Instead, the norms and their content are political agreements that have been come to by states oftentimes made concrete in treaties. And for our purposes here, treaties like the Geneva conventions that regulate international humanitarian law or the way that force may be used between states once an armed conflict has been initiated, or the Rome statute, which defines categories of international crime.

But essentially what I'm saying, I guess in response to your initial question is, it's not totally incoherent to speak of accountability, but we would need to adjust our lens dramatically from the ways in which we speak of law enforcement and accountability in the domestic context to make sense of the scope of that kind of a claim at the international level. And I'll just close by saying that the likelihood of accountability is already vanishingly small in all cases across the board, if we're talking about exposed accountability at the international level, but it becomes that much more infinitesimal if we are talking about a powerful actor in the international system.

Katy Glenn Bass:

So just following on that, so we have this critique of the international legal system as something that serves to embed the world in an order dominated by powerful states and by their allies rather than supplying tools to escape that order. And then you also have, as Asli mentioned, the critique that powerful states have an easier time resisting that accountability or evading that accountability. And looking at this current moment, we have several examples, which Asli listed, of efforts to hold more powerful actors accountable under the international system. We also have a number of ongoing events, the boat strikes by the U.S. military in the Caribbean, the U.S. and Israeli attacks on Iran and on Lebanon, and Israel's attacks in Gaza, all of which clearly violate international law, but for which accountability is proving fairly elusive.

Aslı Ü. Bâli:

I'm sorry, I just wanted a two finger to clarify that I did not intend my opening to be a critique actually. I view it as just descriptive. And I do want to caution that we can't imagine an alternate counterfactual universe in which international law could be structured differently than this, in light of the realities of the actual interstate order that we are in, and that international law can't be treated as a magic wand that could somehow just by legislating normatively erase those asymmetries between states that are a descriptive reality of our world.

Katy Glenn Bass:

Yeah. No, understood. I think it's a fair point. It is also a point that is raised as a critique by many other people in terms of the ultimate failure of the international legal system to really achieve the kind of accountability we might hope for.

Aslı Ü. Bâli:

Again, just a very quick two finger, that would be a category mistake. International law can't fail on grounds on which it was never designed to perform. Because we don't have a mechanism. We have an international legal order that explicitly exempts the powerful, as through the UN Security Council in veto. It can't be described as a failure of international. And I'm sorry if this comes across as pedantic, but I just want to be clear. It's not that such a thing cannot exist at the international level, but the idea that it's a failure of international law to expose, hold accountable great powers that are not actually subject to meaningful constraint institutionally under the law, apart from the self-constraint of the norms themselves, to me, is a category mistake.

Tom Dannenbaum:

I think framing the discussion in terms of accountability specifically is capturing only a narrow sliver of what international law is about at all. And part of the problem of contemporary international legal discourse is that it tends to be drawn to the frame of accountability, to the exclusion of other mechanisms that international law is supposed to set up and supposed to facilitate. And the consequence of that is that we actually get distorted into a discussion about the wrong kind of possibility and the wrong kind of action. Because even where the accountability mechanism functions, it functions only on a very narrow level with respect to a small number of actors, and the actors against which it is effectively invoked are, by definition, those without political power in the system. But international law is also about providing a focal point for political mobilization, collective mobilization among states transnationally, political mobilization domestically.

And there, I think there are at least potentially more opportunities for invoking international law in response to violations by powerful actors. Those possibilities are being diminished by the current attack on international law and international institutions, but they do exist. And it's partly a question of political will and partly a question of imagination in terms of whether or not they can be evoked more successfully going forward. But at the initial stage, the provisional measures processes were about prevention and about providing a focal point around which multiple different actors in the system could orient their action with a view to prevention as opposed to with a view to exposed accountability. And that also then goes to how law is internalized within institutions and within governments. And when we think about how this relates to the history of international law and its facilitation of power, one way in which it facilitates the application of power is through according it some form of legitimacy.

In other words, rendering it something other than purely the naked application of power, it's the application of authority. And as international law has changed, of course it's sustained privileges for the powerful, but they've also sought to sustain the legitimacy of the exercise of those privileges through articulating what they're doing in a language that is, at least on its face, framed in more universal terms, more egalitarian terms. So I think there is an opportunity there for international law to be more effective if we reframe our discussion around prevention and collective action as opposed exclusively to accountability, and understand that there's always a trade-off when you seek to legitimate the application of power. Because the principles that you articulate to grant that power legitimacy, themselves, can be invoked in reverse.

Katy Glenn Bass:

Okay, thank you. I think one of the things that we're interested in is whether what we are seeing in the current moment, where some great powers are no longer even attempting to cast their actions under this sort of language of legitimacy under international law, is this ordinary hypocrisy under great power politics or is this a sign of a more fundamental breakdown in the authority of international law?

Tom Dannenbaum:

Yeah, so I think on the one hand, what we're seeing at the international level is an intensification of a trajectory that's been going on for several decades. So if we start our analysis subsequent to the end of the Cold War, we've seen the erosion of the law governing the resort to force across multiple different instances, whether it's the intervention in Kosovo in 1999, the invasion of Iraq in 2003, or the extension of armed conflict beyond the scope of what was authorized by Resolution 1973 and 2011, in relation to Libya.

So we've seen this erosion of the law governing the resort to force. That is also being paralleled with an erosion of international humanitarian law, the law governing the conduct of hostilities, through the Torture Memos; the expansion of the concept of what the battlefield is, where armed conflict exists, and for how long it exists; the notion of forever wars and detention without any criminal charge or any foreseeable endpoint; targeted killings based on dubious standards of who qualifies as a combatant in armed conflicts far from the space in which active hostilities are taking place; and attacks on objects that are defined as military objectives because they support the economy of the adversary, as opposed to because they directly support military action.

All of those kinds of phenomena have been going on over the last several decades and the United States has been a key agent in the erosion of those principles. So what we're seeing today is in a sense an intensification of that. But I do think there is also a step change and a qualitative change that renders this different in kind, not just different in degree. And I think that's characterized by four different components of what's happening today. One of those components is the brazenness of the violations. In other words, the violations occurring without even a basic effort towards a legal argument to justify them. Another component is the rhetoric around the violations, that the violations are occurring alongside statements by the Secretary of Defense, by the President of the United States, and by multiple ministers in the Israeli government, that are overtly contemptuous of the notion that law can constrain or should constrain these actors in the pursuit of their foreign policy objectives.

Pete Hegseth:

America, regardless of what so-called international institutions say, is unleashing the most lethal and precise air power campaign in history, B2s, fighters, drones, missiles, and of course, classified effects, all on our terms with maximum authorities. No stupid rules of engagement, no nation building quagmire, no democracy building exercise, no politically correct wars.

Tom Dannenbaum:

A third component is that this is taking place alongside direct attacks on international institutions, and indeed, efforts to dismantle domestic institutions through which international law would be applied. So in the United States, that would include firing the top JAGs within the military, dismantling the Civilian Protection Center, significantly diminishing the number of individuals working on civilian harm mitigation in the Department of Defense. Internationally, it would include the sanctioning of six ICC judges and three ICC prosecutors, multiple civil society organizations, UN Special Rapporteur, and defunding the United Nations. And then the fourth component is that all of these things are happening not just with one violation, but across multiple violations that are occurring with a cadence that is analogous to the flooding of the zone that we see in the domestic context, which make it much harder for states to organize collectively in response because there's violation after violation after violation.

The attacks on Iranian nuclear facilities last year, the abduction of Nicholas Madura, the bombardment of Iran, the invasion of Lebanon, that's not even considering what was happening before the Trump administration in Gaza and elsewhere. And these things are happening with such pace that it becomes almost impossible for states collectively to respond in an effective way. And those four things in combination are basically an attack on the notion that international law can be a relevant factor in how states engaged diplomatically, how they frame that engagement in terms of the language of justification and legitimation. And that, from my perspective, entails a qualitatively different threat to the viability of international law as we know it from the erosion that we've seen over the last several decades. Which itself, to be clear, was obviously significantly diminishing of the viability of that legal framework already.

Aslı Ü. Bâli:

I think I agree with the empirical description that Tom gave, and have just a slightly different analysis of its meaning. So first, I think the practices over the three decades plus now, since the end of the Cold War, of the United States in reinterpreting categories of law in a permissive direction that erodes both the prohibition on the use of force and the protective character of international humanitarian law is just indisputable. And is a parallel to what we talk about at the domestic level around modern authoritarianism, which is not lawless, but rather uses a kind of legalism to authorize itself and redefine the norms in ways that become more and more permissive of kinds of concentrations of power that authoritarians like. And actually, I think there's a convergence here, especially around 9/11, where U.S. preferences, domestically, to dramatically expand the national security state and concentrate power in the executive were then uploaded in ways that Kim Scheppele and her work has ably described to the international system through UN Security Council resolutions.

And so you had international law actually reinforcing these authoritarian practices, demanding that states adjust their own internal jurisdictions to adopt counter-terrorism framings and counterterrorism finance framings, et cetera, that basically eroded core constitutional protections domestically around privacy, around property, around procedural protections in the criminal context, and on and on. So we've had this kind of symbiotic relationship in the international changes, introduced by the U.S. largely as a consequence of its own unipolar hegemony at the moment at which the post-Cold War period began, and then its own astonishing over response to the 9/11 attacks and their aftermath. So that was just a secular trend. And it was one that not only paralleled, at the international level, some of the things we've expressed concern about at the domestic level, about authoritarian legality, but also, itself, engendered authoritarian legality within the domestic jurisdictions of the states that happily accepted these resolutions and legislation that led to the concentration of power and their executives, and eroded democracy essentially everywhere.

There are other ways in which I think we see extensions of the same concerns from the domestic arena of authoritarian legality to the international arena, including the ways in which there is a misalignment in the work of professional international lawyers and their role responsibilities towards public law commitments versus their perceived client, or whoever, that leads to the lawyers treating their responsibility in international law as sort of management of sovereign risk or reputational harm or sanctions exposure, or whatever it might be. And therefore, directly contributing to this authoritarian legality by participating in the re-description, redefinition of the norms, authorizing them, legitimating them, furnishing arguments, both inside of government and outside of government, with revolving doors. What we are now witnessing, at the international law level, is the consequences of the unraveling of the imperial order on which the post-World War II international legal system depended. Which was a U.S. willingness, however limited, however episodically subject to defection, et cetera, to engage in a enlightened self-constraint as the patron of an international legal institutional and normative order from which it disproportionately benefited, and therefore was willing to continue to confine itself.

So all of the things that Tom described were things that either the U.S. has done or the U.S. has enabled its allies, especially Israel, to do. What we're saying is, the crisis for international law is a crisis that's being driven by American behavior. And that American behavior, to my mind, is continuous with a three decade period in which you had first the apex of American unipolar power and then the continuous relative decline of that power. Not necessarily because of something the U.S. has done, but because of the reality of shifting distributions of power, the rise of China, the reconsolidation of Russia, a series of things that gave the U.S. less latitude ultimately to dictate terms to its own liking, and forced it to resort more and more often to implausible stretches of existing international legality, as with the Iraq war and with Libya. But today, we have a universe in which the U.S. is now hedging, possibly, against meaningful constraint by international law, in my view.

So that is to say, now, as the distribution of power becomes even more unfavorable and where there's a real possibility of the rise of rivals that, either in the economic domain or in just their capacity to wield political coalitions in their favor, can actually challenge the United States. Not just irritate it at the borders or impose constraints in its periphery, but directly challenge areas of authority in which the United States is deeply invested. The United States is not sure it's willing to tolerate any level of constraint by international law, while at the same time it also understands the ways in which its own legitimacy and authority is parasitic on the claims of international law. And so it does both, and it continues the path of authoritarian legalism by constantly returning to some language of the norms, however implausible, to present argument that there's self-defense against Iran. Iran has been engaging in acts of terrorism and attacks on the United States and Israel for decades, and this is simply self-defense.

Submitting Article 51 letters, creating the Board of Peace. Speaking of it as if it's a rival to the UN Security Council, astonishingly, given the continued asymmetric advantage that the United States enjoys in the Security Council, but then going to the Security Council to get authorization nonetheless for that Board of Peace. So it's both attacking international law in the places where it worries it might face any constraint, and then simultaneously reauthorizing its own conduct through the lens of international laws. It's both willing to continue to work with the existing international legal order and institutions when it believes that they're going to remain arsenals in its own toolkit, largely favoring its power and simultaneously devalue international law because of the worry that another actor might be able to equally well leverage those institutional benefits, and against the interest of the United States.

And that I think is a story less about something changing in international law, as such, than a changing distribution of power, which may result in very serious damage to the international legal order. But it's not yet clear that that's the case. It may also be true that there are states with enough of a stake in the institutions and norms, as they are presently constituted, that they might rally to the defense of this order, notwithstanding the defection of its principal author, which defection has been building for decades.

Tom Dannenbaum:

So I agree with much of what Asli said, with a couple of caveats. There was an alternative path, where the United States, recognizing the unique privileges it has within the existing international legal order, would've done everything possible to shore up that legal order precisely so as to sustain the privileges that it has within that order. And what the current administration is doing is I think the opposite of that. I don't completely disagree with the hedging analysis that Asli gave, but it's definitely not seeking to shore up this legal system. It's engaged in all-out assault on it. Even with respect to the hedging, I would just offer a slight caveat. So when we look at, for example, the Article 51 letter regarding the attack on Iran. Article 51 letters are letters provided to the Security Council that articulate the resort to force in which the state in question is engaged, is compliant with Article 51, which is the article that provides the right to self-defense under the UN Charter.

That letter is fairly astonishing for its total lack of legal argument. It declares that the United States is acting in self-defense, but it provides no cognizably legal argument for how self-defense follows, from what it's describing. It doesn't identify a specific armed attack. It doesn't identify an imperative to respond to that armed attack. Even when it's describing Iranian proxies, it doesn't articulate a theory of attribution that sounds in the standards of international law. It doesn't articulate an attack that those proxies have engaged in, that would be attributable to Iran, that would generate a right of self-defense. It just doesn't provide a legal argument at all. That's different from the, I agree, implausible arguments that the United States and the UK offered in support of their invasion of Iraq in 2003. I think the violations are equally grave. It wasn't plausible for many reasons, but it was a cognizably legal argument.

And that's different from what we're seeing today, which is, on a very superficial level, a recognition of Article 51 as the prevailing doctrine. But when you actually look at the content of the letter, entails no meaningful engagement with that principle or that structure of restraint on when it's appropriate to resort to force. If anything, it looks more like the kind of declaration of war you would have in the pre-charter and pre-Brian Kellogg Pact era, where states had the sovereign prerogative under international law, as it was understood at the time, to declare war and then resort to war on the basis of that declaration. This looks more like that, to me, than a meaningful engagement with Article 51.

And the only third thing I'd say is that the United States is the primary agent of the threat to international law because it's the most powerful actor in the system, but it's not the only one. Russia's invasion of Ukraine is also a key component of this, and China's actions in the South China Sea are also a component of this. It's just that the United States has been overwhelmingly the most powerful actor. And so when it engages in this kind of conduct, it creates a graver threat to the viability of the system as a whole.

Aslı Ü. Bâli:

One quick note on the points on Russia and China. I do think it's important to distinguish between attacks on the law and violations of the law. So one can take the position that Russians are plainly in violation of international law, or that the Chinese are, without drawing the conclusion that either of those actors is actually at war against international law. I think what's distinctive about the U.S.'s conduct is that one might argue that the U.S. is in fact taking aim directly at the legal system itself rather than merely engaging in lawlessness. There are some idiosyncrasies about the Trump administration that distinguishes it from all other American administrations, quite apart from questions of law and its orientation to law, which is its sort of ranking competence as a consequence of its purging of competent people from the state. It's kind of clownish approach towards traditional understandings of the wielding of power and what authority means and what sources of legitimacy are.

So it's the Trump administration's out of keeping with American conduct and practice with respect to law, but also politics, and any number of other things, economics, et cetera, across the board, advancing almost caricatured versions of policies that have their roots in the way that the United States has conducted itself, as above the law and outside of the law and outside of constraint, for decades. But now, taking it to an extreme and in a kind of vulgar expression of it. And that's true, not just with respect to international law, that's equally true in domestic courts when Trump administration lawyers seek to present, what you might imagine would be arguments where arguments are available, and yet they fail to make them or fail to appreciate that they're available, and instead present a sort of political or ideological presentation as if it were a legal argument before baffled federal judges, over and over again, which is why we have what others are viewing as a revolt of the district courts.

But actually, it's just the district courts really scrambled to try to understand what they're supposed to do with arguments that don't correspond to any actual existing legal framework or doctrinal constraint, et cetera. Until you get to the Supreme Court, you don't see the Trump administration, or maybe some of the appellate courts, even trying to deploy arguments that sound or resonate with what are ordinary legal practices in the federal court system. So some of that conduct, I think, like the content of the Article 51 letter, I don't disagree on. In fact, we saw this in the first Trump administration, strikes on Syria.

And then, astonishingly, because other states in part interpret their stake in the continuity of the norms and the order as requiring them to show fealty to the United States or furnish arguments about U.S. conduct, that even the U.S. is not bothering to provide itself, and so somehow, they start generating arguments about the validity of the action against Maduro, or the validity of the action against Syria, where it has no legal basis at all, and in fact, flouts the very core norms of the system that make the system of sovereignty even cognizable. And yet they rush to try to furnish some arguments, while the U.S. remains silent, as to whether there's any legal rationale being presented. But it's hard to parse whether that's an expression of some kind of commitment around institutions and norms or if it's genuinely the kind of recklessness with which the wrecking ball is being wielded by the United States. Not deliberately against international law, but just willy-nilly, as a general matter, without very much concern for even the most short-term consequences, let alone medium and long-term consequences of the conduct in question.

Madhav Khosla:

So Tom and Aslı, some of this, about the extent to which international law is working in similar ways or in different ways, and the extent to which the system is broken or actually functioning perhaps as it always was, or is facing some new kinds of pressures, some of this implicates and necessarily involves actually international lawyers. And some of the things that you both spoke about that came up, just to give a prominent example, Torture Memos. It's hard to think about something like that actually in the absence of the role of international lawyers. And in fact, even insofar as one thinks about critiques of the international law system or open rejections of it, some of that is in fact even being articulated by lawyers themselves, who are framing in some ways that whole international legal order as not in fact being just or legal or fair, or something like that.

And I was wondering if we could slightly pivot to a theme that has been pretty central in this podcast, namely the legal profession's role in upholding the rule of law and in resisting democratic backsliding. And a lot of our previous episodes have focused on lawyers working within national systems, primarily, though not exclusively, the U.S.. How do you think we might think about the professional obligations and responsibilities of international lawyers? And in what ways might they be different from domestic lawyers?

Tom Dannenbaum:

Well, I think one component of this, as Asli already mentioned when she spoke about lawyers engaging in strained interpretations with a view to facilitating the action of their state specifically, or limiting the liability of their state specifically, rather than providing independent legal advice that seeks to, in a good faith manner, apply the legal constraints as they are applicable. And one reason why that kind of strained interpretation is particularly unethical, or particularly inconsistent with any plausible notion of legal ethics in this space, is that often those lawyers are the last voice that a decision maker hears on the law before inflicting violence or other irreparable harm on persons who have no way of having their rights represented on their behalf in the system of decision-making that leads to that irreparable harm.

And so where that's the context in which one's operating, it's, I think, obviously completely implausible to think of one's role as the role of a zealous advocate of a specific client. Because you're not operating before an impartial third actor that is going to hear the claims of the person who has adversarial interests, and then make a determination according to the clash of those competing arguments. You are providing analysis to a decision maker who has some form of extraordinary power that's going to be inflicted on persons who have no power in this decision-making process, and your legal input is going to provide them the shield or cover to inflict that harm or not.

And so, in that context, the bare minimum one can do is to seek to, in a good faith way, and independently, assess the legal constraints to which that state has agreed and consented as the outer limits of how it can apply that kind of power on persons under international law. And so in that context, I think the legal analysis that we saw in the OLC opinions that underpin the torture regime under the Bush administration, are just flagrantly in violation of any plausible concept of legal ethics. And anybody who takes on that role has to see themselves as constrained by a different model of lawyering, that's not lawyering on behalf of a client and advocating, but lawyering as a mechanism of constraint on the otherwise unbridled application of power.

Aslı Ü. Bâli:

I would totally, 100 percent, agree with everything that Tom just said. In a way, lawyers, as a profession, the legal profession is structurally even more powerful in the international domain than it is in the domestic domain, for the very reason he described, in the absence of world government, for the most part, in the absence of adjudication or any really countervailing force, to the argument made by international lawyers and advising states as actors. There is enormous power in how those arguments are forwarded, and moral exposure. And then there's also enormous professional rewards for remaining within that role in a way that is unethical, and embraces this client service model rather than a model in which the international lawyer providing that advice has an obligation to the public law norms of their profession and of the underlying order and its enormative commitment. So as the authors of the Torture Memos went on to become a professor at one of the leading law schools in America and a federal judge on one of the most powerful appellate courts in America, that was the sanction they faced.

And I should note that they were providing lawyering advice in a context in which there's actually a bar that could hold them liable for malpractice, if they chose to. But in many instances, international lawyers are operating in places where there is no such ethical guild that governs the profession as a whole, and outside of any kind of standard. Even within that standard, as I say, they were rewarded rather than held accountable in any meaningful sense. Only in the most extreme cases, as with, for example, when there were finally public inquiries in the UK, and notably not in the United States, about the quality of the legal advice that was provided in advance of the Iraq war. But that's an extraordinary example, very rare that you would ever have that kind of return to the underlying advice that's given, or even a counterparty who will press back or push back on that legal analysis in a way that actually is relevant to the decision maker in question. No state's decision maker is going to take note of the legal advice emanating from another state's legal advisor. So it's not adversarial in that sense.

And then, as I say, they often serve in this kind of revolving door fashion, where the very fact that they held senior position in government, or were capable of giving advice, becomes its own qualification to then be a scholar and academic producing scholarship, that then further legitimates the positions taken while in office. And then you have an ecosystem, especially in the Anglo-American or English language international law literature, that furnishes... It's just a completely self-referential closed loop, where people advocate implausible positions while advising government around unwilling and unable. Then they come back into academic positions and write articles defending that position. Then they go back into government and act on it, citing the articles that they or their colleagues have published. It's really a kind of lawless world of its own that raises very serious questions about the professional responsibility and accountability that lawyers themselves should be held to.

Tom Dannenbaum:

So there's another way of understanding this question, which is less about the ethics of government lawyering in the context of international law, or even the ethics of the revolving door relating to government and academia. And that is instead about the question of what we, as participants in international legal discourse right now, should be doing in the face of the crisis that we have identified occurring in international law. Whether you identify it as part of a long-term trajectory or a step change that is still within that trajectory, but maybe qualitatively distinct, whatever one's view on that, there is a question of how we respond to the reality of this obvious existential threat to the international legal system. And does it still make sense to articulate what we're seeing as violations of international law? Does it make sense to continue to invoke these principles when they seem to be no longer sustainable?

My own view on that is that it does still make sense to articulate them in those terms in the current moment. One reason for that is that I think that the two components of the challenge to international law that are mostly about rhetoric and institutions, namely how the administration is framing its contempt for international law through the rhetoric of the Secretary of Defense, the president, and the fact that it's attacking institutions like the International Criminal Court, are themselves responsive to a recognition by the administration that international law is not completely meaningless. Another way of putting that is, it doesn't make sense to sanction ICC prosecutors and judges, and to devote political capital to an attack on this institution, if you think the fact of the arrest warrants for Netanyahu and Gallant, and the fact of a possible, although obviously extremely unlikely, investigation of U.S. officials for war crimes in Afghanistan is meaningless.

If those things are meaningless, why even pay any attention at all? The reason they're paying attention to them is because they recognize that international law still has some validity or utility in international discourse in diplomatic collective action, in the way that certain actors are considered as having legitimacy, or not, in the way that they are outcasts, or not. Such that, for Netanyahu, the threat's not that he's going to be arrested tomorrow, that's obviously extremely unlikely. It's basically inconceivable because he's not going to travel to any state that would arrest him. But he is suffering an enormous legitimacy deficit associated with what has happened in Gaza and the West Bank, frankly, and Lebanon. But also, the fact that an international institution of the status of the International Criminal Court has responded to that by issuing arrest warrants for him and his former Secretary of Defense for their participation in that.

And what the Trump administration is trying to do is, in my view, is completely obliterate the institutional focal point of that kind of response, and deny that there is any way in which we should recognize what the Israeli government has done as illegitimate. And in the face of that, I think it would be an extraordinary capitulation to just say, "You know what? They're right. None of this matters. It's all power." When they, themselves, in virtue of having devoted these political resources to trying to attack this system, are recognizing that it still holds some sway, that there is still some effect to these kinds of actions. The second reason why I think it's important to sustain that response, sustain the response of articulating these things as clear violations of international law is, notwithstanding the fecklessness of some states, prominently states like Germany or Canada, that are essentially willing to withdraw any commitment to international law that they've previously invoked in other contexts when it is politically inconvenient in relation to their connection to the United States or Israel.

There are other states that have actually taken leadership roles and have taken significant actions to try and invoke this legal framework, and invoke it in creative ways, whether those are states that are more aligned with the U.S. than any other powerful actor in the system, such as Spain or Norway, or whether it's other states, such as South Africa, litigating at the International Court of Justice, or The Hague group that is seeking to mobilize around preventing arms transfers and invoking universal jurisdiction, including in Florida, that haven't previously been the primary sites of universal jurisdiction cases, or other actors in the system, including civil society organizations in some of the seats of power from which these violations are emanating. And so I think there is still that activity in the system, and to give up on that while that activity is occurring, including in ways that are to a certain extent unprecedented, I think would be a mistake.

And then the final reason I think it would be a mistake to cease invoking international law and seek identifying these violations is, whatever emerges from this current crisis, it's obviously not going to be just a snapback to what we had in the mid 1990s. And then for reasons, as I mentioned earlier, I don't think that would be desirable anyway, but it is going to require a re-imagining and reconstructing of an international legal order. And part of the foundation of that is going to be identifying what needs to be salvaged from the current legal order, and then trying to sustain those principles as part of the foundation for orienting around a new legal order. And the most fundamental question for any international legal order relates to the resort to force, because everything about how international law works is in part predicated on, under what conditions can states resort to force? And so to give up on that because we're seeing brazen violations of it, would, I think, be an enormous mistake.

Aslı Ü. Bâli:

I'll just chime in to agree with Tom. I don't think any of us who are teaching international law can take a position that international law doesn't exist or should be simply disregarded or set aside. And the resource that it provides, which is made clear in the examples that Tom gave, is the possibility of imminent critique. That is the possibility of using these norms and institutions to advance a critique of the conduct that we wish to see constrained. And one that, even if it doesn't prevail in the sense of traditional accountability, where we began this original conversation, it does prevail in reshaping the political context in which the action is unfolding, increasing the costs to actors that are engaging in violence and violating the rules in ways that, for example, most recently have resulted in the restraint being imposed on, at the moment, for example, Israel. Because there is a circumstance in which you have global revulsion at the conduct of the state that is itself framed by things like, UN Commission of Inquiry, once again, finding that this is genocidal conduct deliberately targeting children.

Having that shared language, having a way to describe the world and categorize and organize the world, and this kind of conduct, in shared and consensus-based classification of what is and is not permissible in the system, remains incredibly valuable. And it's valuable in part because, as Tom said, it may be the case that we're moving into a new international legal order. It's not clear to me, again, that we are at a place of complete unraveling now of this order, either its norms or its institutions. We'll see, but it may be too soon to come to that conclusion. And so it may not be replaced so much as continue to have modest reforms at the margins, as it has done for decades. But those reforms have shown some significant gains, particularly for countries of the global South. And The Hague group could be understood as essentially a coalition of the Global South, trying to leverage support from middle power states that now feel threatened by the defections that they see around them, and as well as the potential for then unconstrained spheres of influence to emerge.

And so what it really points to is, the alternative to this international legal order is not another new international legal order, but actually no shared multilateral institutions, and instead silos of regional power that don't have either a shared vocabulary across them or a shared institutional frame. And the purpose of that frame, and the original logic of the architecture that was created in the wake of the Second World War, was to find ways to channel into institutions forms of competition so destructive that they actually threatened planetary extinction. That was the reality of the post-Hiroshima Nagasaki endpoint of the Second World War. And it's once more made vivid for us now in a way that I think for decades it hasn't been, that the alternative to the international architecture is not a different, better international legal architecture, but potentially no shared legal architecture or institutional architecture, in which we wouldn't have that shared language or capacity to wield influence or engage in imminent critique.

So regardless of how far we think the existing norms and institutional structures fall short of some ideal justice standard, they actually represent something that is a significant increment of improvement over the alternative. And I very much worry that the sort of critical impulse to say flagrant violations mean there is no international law, is an impulse that only accelerates the very things that those expressing those worries are most concerned about.

Katy Glenn Bass:

I think that's a really interesting insight to end on. Tom and Aslı, this has been such a wonderful conversation. Thank you so much for taking the time to join us on Lawyering Without Law for our final episode. We really appreciate it.

Tom Dannenbaum:

Thank you very much for having us.

Aslı Ü. Bâli:

Yes, thank you for having us.

Madhav Khosla:

Thanks so much for being with us.

That's it for this season of “Lawyering Without Law.” You can explore all six of our episodes wherever you get your podcasts. And you can learn more about the Knight Institute at knightcolumbia.org. That's Knight with a K, and follow us on social media.

Katy Glenn Bass:

“Lawyering Without Law’ is a production of the Knight First Amendment Institute at Columbia University. This episode was produced and engineered by Dustin Foote. Fact checking by Harriet Engelke and Arman Amin. Candace White is our executive producer. Our music comes from Envato Elements. The art for our show was designed by Jay Vollmar. Thanks to Tom Dannenbaum and Asli Bali, who joined us for this episode. And thank you for joining us throughout this series. We're grateful for your curiosity, your attention, and for your engagement in these conversations.

 

]]> /content/lawyering-without-law-transcript-ep-6 Fri, 10 Jul 2026 00:00:00 -0700 <![CDATA[Florida Executive Order Targeting CAIR Violates First Amendment, Knight Institute Argues]]> https://knightcolumbia.org/content/florida-executive-order-targeting-cair-violates-first-amendment-knight-institute-argues ATLANTA—The Knight First Amendment Institute at Columbia University and Selendy Gay PLLC today filed an amicus brief supporting the Council on American-Islamic Relations (CAIR), the nation's largest Muslim civil rights and advocacy organization, in its challenge to Florida Gov. Ron DeSantis’s executive order targeting the organization. The brief argues that the order violates the First Amendment and threatens rights essential to our democracy, and it urges the appeals court to affirm a district court ruling blocking the order. 

“The First Amendment doesn’t allow the government to blacklist advocacy organizations simply because officials disagree with their views,” said Xiangnong (George) Wang, staff attorney at the Knight First Amendment Institute. “Gov. DeSantis’s executive order is a dangerous attempt to punish an American civil rights organization based on its perceived ideology and associations. If the executive order is allowed to stand, it would embolden state officials of all political stripes to target advocacy groups they disfavor.”

Executive Order 25-244, titled “Protecting Floridians from Radical Islamic Terrorist Organizations,” labels CAIR a “terrorist organization” and directs Florida agencies to deny the organization and those who provide it support access to contracts, employment opportunities, funding, and other government benefits and privileges.

The brief argues that the court should subject the executive order to the most stringent constitutional scrutiny because the order singles out CAIR for punishment based on the organization’s purported viewpoint and is motivated by a desire to suppress disfavored ideas. It also explains that the order cannot survive any form of heightened scrutiny and is therefore unconstitutional. The brief explains that the order prevents CAIR from engaging in important advocacy work and chills the expressive and associational rights of those who wish to work with or support CAIR, and it warns that accepting Florida’s defense of the order would give governments extraordinary authority to target and punish a wide range of groups for their protected speech and association.

In March, a federal district court preliminarily blocked enforcement of the executive order, holding that the order violates the First Amendment because it coerces third parties to cease their protected expressive and associational activities with CAIR. Gov. DeSantis appealed the district court’s decision.

In a separate lawsuit filed earlier this month, CAIR and its Florida affiliate are challenging recently enacted Florida laws that allow state officials to designate groups as domestic terrorist organizations based on unproven allegations.

Read today’s amicus brief filed in the U.S. Court of Appeals for the 11th Circuit here.

Read more about the case here.

Lawyers on the case include Jameel Jaffer, Alex Abdo, Anna Diakun, and Xiangnong (George) Wang for the Knight First Amendment Institute; and Corey Stoughton and Dylan Jarrett for Selendy Gay PLLC.

For more information, contact: Gabriel Tyler, gabriel.tyler@knightcolumbia.org 

]]> /content/florida-executive-order-targeting-cair-violates-first-amendment-knight-institute-argues Thu, 09 Jul 2026 00:00:00 -0700